\EATIONS 


. AND  FLIGHTS 
OF  A  TRAVELLER 


GIFT  OF 

Saacroit 
LIBRARY 


LEGAL  RECREATIONS. 
VOL.  IV. 

THE  LAW  OF  THE  EOAD. 


THE 


LAW  OF  THE  ROAD ; 


WRONGS  AND  RIGHTS   OF  A  TRAVELLER. 


R.  VASHON  ROGERS,  JE. 

A  BARRISTER  AT  LAW  OF  OSGOODE  HALL. 


SAN  FRANCISCO: 
SUMNER   WHITNEY  AND   COMPANY. 

NEW   YORK:  KURD  AND   HOUGHTON. 
rtfjje:  Cfje  Etbrrs'ttre 


COPYRIGHT,  1876, 
BY  SUMNER  WHITNEY  &  CO. 


GIFT  OF 

Bane  roil 

LIBRARY 


RIVERSIDE,  CAMBRIDGE: 

STEREOTYPED    AND    PRINTED    BY 

H.  0.  HOUGHTON  AND  COMPANY. 


PKEFACE 


CANADIAN   EDITION. 


THIS  little  work  does  not  aspire  to  compete 
with  the  learned  productions  of  Redfield,  Chitty, 
or  Story,  but  merely  to  supply  a  want,  felt  by 
many  to  exist  in  this  age  of  perpetual  motion,  of 
a  plain  and  brief  summary  of  the  rights  and 
liabilities  of  carriers  and  passengers  by  land  and 
by  water. 

An  attempt  is  made  in  the  following  pages  to 
combine  instruction  with  entertainment,  informa 
tion  with  amusement,  and  to  impart  knowledge 
while  beguiling  a  few  hours  in  a  railway  carriage, 
or  on  a  steamboat.  Whilst  it  is  hoped  that  the 
general  public  will  peruse  with  interest  the  text, 
containing  elegant  extracts  from  ponderous  legal 
tomes  —  gems  from  the  rich  mines  of  legal  lore  — 
and  where  in  many  cases  the  law  is  laid  down  in 
the  very  words  of  learned  judges  of  England, 
Canada,  and  the  United  States  ;  the  notes  —  a 
cloud  of  authorities  —  the  index  and  the  list  of 
cases  are  inserted  for  the  special  delectation  of  the 
professional  reader. 

861370 


VI  PREFACE. 

Though  written  in  Ontario,  the  book  will  be 
found  applicable  to  all  parts  of  the  Dominion,  as 
well  as  to  the  United  States  and  England. 

The  author,  even  if  the  style  is  deemed  novel, 
does  not  seek  the  praise  of  originality  for  the  sub 
stance  of  the  following  chapters,  as  the  greater 
portion  of  the  text,  and  well  nigh  all  the  notes, 
have  been  taken  from  the  works  of  others,  to 
whom  all  due  thanks  are  now  rendered. 

How  far  the  book  is  likely  to  be  of  use  to  the 
seeker  after  knowledge,  or  of  assistance  to  those 
desiring  to  kill  time,  is  for  others  to  determine. 
If  mistakes  be  discovered  it  is  hoped  that  the 
reader  —  professional  or  otherwise  —  will  bear 
with  them,  "  for  if  the  work  be  found  of  sufficient 
merit  to  require  another  edition,  they  will  prob 
ably  be  corrected,  and  if  no  such  demand  is  made 
the  book  has  received  as  much  labor  as  it  de 
serves." 

The  author  is  very  "  'umble,  coming  of  an 
'umble  family,"  like  the  celebrated  Uriah  —  not 
the  Hittite,  but  he  of  the  Heap  tribe  —  and  he 
will  be  quite  content  and  satisfied  if  every  reader, 
after  having  perused  this  work,  says  of  him  as 
Lord  Thurlow  said  of  Mansfield :  "  A  surprising 
man ;  ninety-nine  times  out  of  a  hundred  he  is 
right  in  his  opinions  and  decisions,  and  when  once 
in  a  hundred  times  he  is  wrong,  ninety-nine  men 
out  of  a  hundred  would  not  discover  it." 


PREFACE 

TO  THE 

AMERICAN    EDITION. 


IN  this  present  year  of  grace  the  British  Lion  is 
gently  purring  in  the  centennial  eyry  of  the  Ame 
rican  Eagle  ;  thither  also,  the  Canadian  Beaver, 
with  a  maple-leaf,  the  emblem  of  sweetness,  in 
his  mouth,  has  wended  its  way :  a  striking  con 
trast  to  the  deeds  of  one  hundred  years  agoiie, 
when  the  followers  of  the  quadrupeds  were  striving, 
teeth  and  claw,  to  send  the  lovers  of  the  biped  to 
that  bourne  from  which  no  traveller  returns. 

The  time  seems  therefore  opportune  for  a 
member  of  the  Beaver  family  to  present  to  the 
worshippers  of  the  mighty  Eagle  an  edition  of  a 
little  book  touching  upon  the  wrongs  and  the 
rights  of  those  of  the  republic,  and  from  distant 
lands,  who  travel  upon  the  74,000  miles  trav 
ersed  by  the  iron  horse,  or  the  hundreds  of 
thousands  of  leagues  frequented  by  nags  of  more 
mortal  frame,  on  the  American  continent. 

The  following  is  a  Canadian  book,  revised,  en 
larged,  abridged  (the  watery  element  being  omit- 


Vlll  PREFACE. 

ted),1  and  rendered  more  suitable  to  the  palate  of 
Uncle  Sam  by  the  admixture  of  many  more  of  the 
wise  sayings  of  the  men  learned  in  the  law  of  the 
United  States.  Originally  published  anonymous 
ly,  the  author  has  been  induced,  by  the  kind  no 
tices  of  his  little  book  that  have  appeared,  to 
acknowledge  his  bantling ;  and  he  would  seize  this 
opportunity  of  rendering  thanks  to  those  critics 
who,  when  writing  of  the  first  edition  of  his  work, 
dipped  their  pens  into  a  solution  of  sugar  and 
honey  and  not  into  an  extract  of  wormwood,  vine 
gar  and  gall. 

R.  V.  R.  JR. 
KINGSTON,  ONTARIO, 
June,  1876. 

1  Also  the  List  of  Cas*s. 


WRONGS  AND  EIGHTS  OF  A 
TRAVELLER! 


CHAPTER  I. 

DEIVING. 


New  Year's  Day.  — Collision  with  Old  Bolus.  —  Must  I  pay  for  my 
Servant's  Deeds.  —  Deaf  Man  run  over.  —  Effects  of  an  Avalanche. 

—  Housemaid  injured  by  Coachman.  —Wives,  Snakes  or  Eels  — 
Icy  Walks.  -  Falling  Snow.  —  Board  Walks.—  Driver  and  driven. 

—  Right  Side  or  Wrong.  —  Look  out.  —  Walkers.  —  Sunday  Driv 
ing  and  Visiting.  —  Church-going.  —  Sunday  Laws. 

MY  life,  so  far  as  the  readers  of  this  sketch  are 
concerned,  may  be  taken  to  have  commenced  on 
the  New  Year's  morning  after  I  had  married  a 
wife,  and  set  up  a  trap  with  the  necessary  accom 
paniments  of  a  horse  or  two  and  a  man. 

It  was  my  intention,  pursuant  to  the  time-hon 
ored  custom,  to  go  out  in  the  afternoon  with  a 
friend  to  call  upon  my  extensive  circle  of  lady 
acquaintances.  At  10  A.  M.  Mrs.  Lawyer  came 
into  ^my  library  frantic  and  breathless  ;  the  pal 
pitations  of  her  heart  having  somewhat  subsided. 
and  her  heaving  bosom  sunk  to  rest,  she  ex 
claimed  :  — 

W.  &R.  OFT.— 1 


DRIVING. 


"  O  Eldon,  that  horrid  John  must  be  drunk  I 
He  took  out  the  horse  and  sleigh  this  morning, 
and  when  driving  down  Main  Street,  he  ran  into 
Dr.  Bolus's  cutter  and  knocked  it  all  to  pieces." 
•;:\i*Ah,  my/  c^ar  jljlizabeth,  calm  your  troubled 
rm'ritT;"  "f*" coolly "•  replied,  "  John,  without  my 
Jnpwl^lg^"  I  «hd  •  \yVpngf ully,  took  my  horse  and 
sleigli  Tor  so^ne*  "purpose  or  other  of  his  own,  and 
ran  into  old  Bolus's  turn-out,  you  say  :  well,  the 
law  is  perfectly  clear  that  I  am  not  responsible  for 
the  injury,  as  I  did  not  intrust  my  servant  with 
the  sleigh.1  I  may  tell  you  for  your  edification 
that  the  general  rule  is  that  a  master  is  not  liable 
for  the  tortious  act  of  his  servant,  unless  that  act 
be  done  by  an  authority,  either  express  or  implied, 
given  him  for  that  purpose  by  the  master  ; 2  or  as 
Mr.  Baron  Parke  puts  it,  if  a  servant  is  going  on 
a  frolic  of  his  own,  without  being  at  all  on  his 
master's  business,  the  master  will  not  be  liable."  3 

"  Oh,  but  dear  Don,  I  forgot  to  tell  you  that  I 
sent  him  to  the  confectioner's  for  some  cakes ;  but 
I  told  him  to  drive  along  West  Street." 

"  Confound  it,  that 's  a  different  matter.  The 
Doctor  will  rush  off  to  friend  Erskine,  and  I  will 
have  to  pony  up  for  the  damage  ;  because,  as  that 
rascal  John  was  driving  on  his  master's  business, 

1  M'Manus  v.  Crickett,  1  East,  106;    Croft  v.  Alison,  4  B.  &  Aid.  590; 
Sleath  v.  Wilson,  9  C.  &  P.  607,  qualified  by  Seymour  v.  Greenwood,  6  II.  & 
N.  359,  7  II.  &  N.  355 ;  Lamb  v.  Palk,  9  0.  &  P.  631 ;  Sheridan  v.  Charlick,  4 
Daly,  338. 

2  Roe  v.  Birkenhead,  etc.,  Rw.  Co.,  7  Ex.  36. 
s  Joel  v.  Morison,  6  C.  &  P.  501. 


DRIVING.  3 

it  matters  not  that  he  disobeyed  his  express  orders 
in  going  out  of  his  way,  or  made  a  detour  to 
please  himself."  l 

"  Yes,  but  Eldon  dear,"  continued  my  wife, 
"  it  was  not  on  his  master's  business,  it  was  on 
mine." 

"  Stupid,  what  difference  does  that  make  ?  "  re 
plied  I,  impatiently ;  and  then,  seeing  that  my 
wife  did  not  like  the  adjective,  I  added  more  feel 
ingly,  but  rather  vaguely,  "  Don't  you  see,  I  'm 
his  master,  you  are  mine,  and  so  must  be  his 
also." 

"  Heigh-ho  !  "  sighed  the  wife  of  my  bosom. 
"  But  I  have  not  told  you  all.  After  the  collision 
the  horse  ran  against  an  old  man  who  was  walk 
ing  along  the  street,  knocked  him  down,  and  hurt 
him  :  but,  of  course,  he  had  no  right  to  be  on 
the  road,  when  there  was  a  good  sidewalk  for 
him." 

"  Of  course  he  had  a  right  to  be  on  the  road, 
just  as  much  right  there  as  the  horse  and  sleigh 
had,  even  though  he  were  sick  and  infirm  ;  and  it 
was  John's  business  to  take  care  where  he  was 
going  !  "2 

"  Yet  John  says  he  told  the  man  to  get  out  of 
the  way,  and  he  would  n't  do  it ; "  pleaded  my 
wife. 

1  Limpus  v.  London  Omn.  Co.,  1 II.  &  C.  526 ;  Joel  t>.  Morison,  6  C.  &  T. 
501 ;  Mitchell  t*.  Crassweller,  13  C.  B.  237;  Seymour  v.  Greenwood,  7  H.  & 
N.356. 

2  Boss  v.  Litton,  5  C.  &  P.  407 ;  Brooks  v.  Schwerin,  54  N.  Y.  343. 


4  DRIVING. 

"  That  does  not  matter.1  I  hope  no  more  dam 
age  was  done  ?  "  I  queried. 

"  Yes  ;  the  horse  shied  and  upset  the  sleigh ; 
and  John  says  that  all  his  —  I  mean  John's  — 
ribs  are  broken,  and  that  he  is  kilt  entirely ;  and 
he  swears  that  he'll  make  you  pay  for  it  —  that 
he  '11  sue  you." 

u  Let  him  sue  away  and  be  hanged ;  he  '11  get 
nothing  for  his  pains  but  the  pleasure  of  spending 
his  earnings ;  he  is  my  servant  and  has  to  run  the 
risk  of  being  hurt  in  my  employment."  2 

"  But  then,  Eliza  Jane,  the  housemaid,  was 
with  him,  was  thrown  out  too,  and  had  all  the 
skin  taken  off  her  face  ;  and  she  says  she  '11  sue 
too." 

"  Oh,  I  'm  sorry  for  that ;  I  like  her,  and  then 
she  was  so  pretty." 

"  Eldon  !  how  dare  you  say  so  —  to  your  wife, 
too ! " 

"I  —  I  —  only  meant  that  I  would  have  to  pay 
for  the  damage  to  her,  and  that  if  I  did  not  do  it 
willingly,  any  jury  would  be  persuaded  by  her 
pretty  face  to  give  a  heavy  sum  against  me  for  the 
injury  done  to  her  by  my  servant.3  Well,  'tis  a 
pretty  how-do-ye-do  for  a  New  Year's  gift.  I  '11 
go  down  and  see  the  wretch." 

Off  I  went,  glad  to  get  out  of  Elizabeth's  sight. 

1  Woolley  v.  SCOTCH,  3  M.  &  Ry.  105. 

2  F-aterson  v.  Wallace,  1  Macq.  751 ;  Meara's  Admr.  v.  Holbrook,  20  Ohio 
St.  137  ;  C.  &  A.  R.  R.  Co.  v.  Murphy,  53  111.  339. 

s  Lord  Cramvorth,  Bartonshill  Coal  Co.  r.  Reid,  3  Macq.  294-307. 


DRIVING.  0 

She  had  grown  a  little  jealous  because  I  had  shown 
a  few  trifling  civilities  to  pretty  Eliza  Jane,  — very 
trifling  they  were,  I  assure  you ;  besides  I  wanted 
to  vent  my  rage  on  the  man  John.  In  a  very 
short  time  some  words  and  phrases  were  used  in 
the  yard  to  which,  doubtless,  Moses  would  have 
objected,  if  he  had  the  first  table  of  stone  in  his 
hand.  My  ire,  however,  cooled  down  in  time  when 
I  found  that  the  man  was  "  all  serene,"  and  that 
all  the  trouble  had  been  caused  by  the  horse 
having  taken  fright  at  the  fall  of  a  lot  of  snow 
and  ice  off  a  house-top  —  a  circumstance  over 
which,  of  course,  I  had  not  the  slightest  control ; 
and  therefore  I  was  not  liable  to  Dr.  Bolus,  the 
old  man,  nor  to  pretty  Eliza  Jane.1  -But  to  make 
matters  all  straight  I  gave  my  man  a  couple  of 
dollars,  and  meeting  E.  J.  on  the  back-stairs  as  I 
went  in  I  chucked  her  under  her  dimpled  chin, 
and  told  her  that  crying  would  make  her  pretty 
eyes  look  red  and  swollen  ;  and  then  retiring  to 
my  library  read  up  all  the  cases  bearing  on  the 
subject,  beginning  with  the  old  case  of  Michael  v. 
Alistree,2  where  the  defendants  "  in  Lincoln's  Inn 
Fields,  a  place  where  people  are  always  going  to 
and  fro  about  their  business,  brought  a  coach  with 
two  ungovernable  horses,  et  ex  improvide,  incaute 
et  absque  consideratione  inaptitudinis  loci,  there 

1  Wakeman  v.  Robinson,  1  Bing.  213 ;  Hammack  v.  White,  11  C.  B.  (N.  S.) 
588 ;  Gibbons  v.  Pepper,  1  Ld.  RajTm.  38 ;  Jackson  v.  Bellevieu,  30  Wis.  257; 
Livingston  v.  Adams,  8  Cow.  175  ;  Ficken  v.  Jones,  28  Cal.  618. 

2  2  Ley.  172  ;  1  Ventr.  295. 


6  DRIVING. 

drove  them,  etc.,  and  the  horses,  because  of  their 

ferocity,  being  not  to  be  managed,  ran  into  the 

plaintiff,  and  hurt  and  grievously  wounded  him," 

and  the  plaintiff  got  damages  as  well  as  damaged. 

At  the  appointed  hour  my  friend  and   young 

brother-in-the-law,  Tom   Jones,  arrived.     As   he 

sank  into  one  of  the  softest  of  our  drawing-room 

*  chairs,  and  gazed  around,  he  exclaimed  :  — 

"  By  Jove,  Eldon,  you  look  so  snug  and  cosy 
here  that  I  am  half  inclined  to  follow  suit,  quit 
our  bachelor's  hall,  marry  a  nice  little  girl  I  wot 
of,  and  settle  down." 

"  Do  so  at  once,"  said  my  wife. 
"  Ah  !  I  cannot  forget  the  words  of  that  good 
old   judge,  Sir  John    Moore,"  he  replied  with  a 
sigh. 

"  Oh,  you  are  as  bad  as  Eldon,  always  quoting 
some  fusty  old  judge.  But  what  did  he  say  ?  " 
queried  my  wife. 

"  He  said  that  he  would  compare  the  multitude 
of  women  who  are  to  be  chosen  for  wives  unto  a 
bag  full  of  snakes,  having  among  them  a  single 
eel.  Now,  if  a  man  should  put  his  hand  into  this 
bag,  he  might  chance  to  light  on  the  eel,  but  it  is 
one  hundred  to  one  he  would  be  stung  by  a 
snake,"  returned  Jones. 

"  The  horrid  old  wretch.  I  am  sure  I  was 
neither  a  snake  nor  an  eel :  was  I,  Eldon  ?  I  hate 
both." 

"  Oh,  no,  my  dear,"    I   replied.     "  But   Tom, 


DRIVING. 


that  surely  is  only  an  obiter  dictum,  not  a  decis 
ion  of  that  worthy  judge." 

"  Of  course."  replied  Jones  ;  "  but  all  the  dicta 
of  judges  are  entitled  to  weight."  Tom  had  just 
been  called  to  the  bar. 

"  It  is  time  that  you  two  horrid  creatures  left 
here,"  said  Mrs.  L. 

"  Well,  suppose  we  start.  Mind  dear,  to  tell 
the  man  to  be  sure  to  meet  us,  two  hours  from 
now,  at  Mrs.  Smith's." 

"  Is  your  life  insured  against  accidents,  Mr. 
Jones  ?  "  asked  my  wife.  "  You  are  sure  to  be 
run  away  with  and  upset." 

"  Only  against  railway  accidents,"  he  said. 

"That's  stupid,"  I  remarked,  "for  it  is  well 
settled  that  hardly  seven  per  cent,  of  accidental 
claims  arise  from  accidents  in  travelling  by  rail  or 
water,  while  those  arising  from  horse  or  carriage 
injuries  exceed  in  number  those  from  all  other 
causes  combined." 

"A  pleasant  idea  wherewith  to  start  for  an 
afternoon's  drive,"  quoth  Tom. 

Off  we  went,  followed  by  the  best  wishes  of  my 
loving  and  lovely  spouse.  Scarce  had  our  feet 
touched  the  sidewalk  when,  with  the  exclama 
tion,  "  Get  out  you  rascallion  ! "  Jones  executed  a 
pas  seul,  and  then  lay  sprawling  on  the  ground  ; 
and  the  small  boy  —  whose  sled  as  it  slid  swiftly 
down  the  board  walk  my  friend  had  vainly  en 
deavored  to  avoid  —  glided  merrily  on.  As  I 


8  DRIVING. 

whisked  the  snow  off,  Jones  in  wrathful  accents 
consigned  the  juvenile  to  a  place  beyond  the  pos 
sible  limits  of  frost,  and  exclaimed :  — 

"  I  '11  sue  the  city  for  allowing  the  road  to  be  in 
such  a  beastly  state.  Corporations  are  bound  to 
keep  the  street  in  a  proper  condition,  so  that  the 
lives  and  bones  of  passers-by  will  not  be  endan 
gered." 

"  True,"  I  replied,  "but  the  accident  was  not 
wholly  caused  by  the  slipperiness  of  the  pave 
ment  ;  the  unlawful  and  careless  act  of  the  boy  in 
coasting  had  something  to  do  with  your  over 
throw  ;  and  in  the  exactly  similar  case  of  Mrs. 
Shepherd  it  was  decided  that  the  city  was  not 
liable."  i 

"  I  tell  you  all  towns  and  cities  must  keep  their 
highways  and  streets  in  repair,  so  that  they  are 
without  obstructions  or  structural  defects  which 
may  endanger  the  safety  of  travellers,  and  are 
sufficiently  level  and  smooth,  and  guarded  by  rail 
ings  when  necessary,  to  enable  people,  by  the  ex 
ercise  of  ordinary  care,  to  move  about  with  safety 
and  convenience."  2 

"  You  repeated  that  sentence  very  well  and 
with  great  emphasis.  It  is  quite  correct  in  a 
general  way  that  highways,  streets  and  sidewalks 
should  at  all  times  be  safe  and  convenient,  but 

1  Shepherd  et  ux.  v.  Chelsea,  4  Allen,  113 ;  Ilutchinson  v.  Concord,  41  Vt. 
271 ;  Ray  v.  Manchester,  46  N.  II.  59. 

2  Hixon  v.  Lowell,  13  Gray,  59  ;  Barber  v.  Roxtmry,  11  Allen,  320  ;  Hewi- 
son  v.  New  Haven,  34  Conn.  142. 


DRIVING.  3 

then  regard  must  be  bad  to  the  locality  and  in 
tended  uses.1  Towns  are  liable  only  for  injuries 
caused  by  defects  and  obstructions  for  which  they 
might  be  indicted.2  They  do  not  insure  the 
.safety  of  all  using  sidewalks  in  the  depths  of  our 
northern"  winters  ;  3  and  it  has  been  expressly  de 
cided  that  the  mere  existence  of  a  little  ice  on  the 
walk  is  no  evidence  of  actionable  negligence :  * 
the  slipperiness  of  the  ice,  if  the  walk  is  properly 
constructed  and  free  from  accumulations  of  snow, 
will  not  give  those  who  fall  a  right  to  sue  a  city 
with  success.6  One  must  go  gingerly  and  with 
due  care  on  such  occasions."  6 

"  All  very  fine,''  said  Jones,  "  but  when  my 
friend  Clapp,  in  walking  along  the  streets  of  the 
city  of  Providence,  at  night,  fell  on  some  ice  and 
broke  his  thigh,  he  recovered  damages." 

"  Yes,  I  remember  ;  but  then  there  was  a  ridge 
of  ice  and  snow,  hard  trodden,  in  the  centre  of  the 
sidewalk,  which  was  considered  such  an  obstacle 
as  the  city  should  have  removed.7  And  "  — 

Ere  I  had  completed  my  sentence  the  hour  of 
my  doom  had  struck,  and  I  was  as  white  as  ever 
miller  was ;  an  avalanche  of  snow  slid  off  a  roof 
and  thundered  down  on  my  devoted  head.  Jones 

1  City  of  Providence  v.  Clapp,  17  How.  168. 

2  Merrill  v.  Hampden,  26  Me.  234. 

s  Eingland  v.  Toronto,  23  C.  P.  Out.  93. 

*  Ibid. 

6  Stanton  v.  Springfield,  12  Allen,  566 ;  Hutchins  v.  Boston,  Ib.  571  n. 

6  Wilson  v.  Charlestown,  8  Allen,  137. 

i  City  of  Providence  v.  Clapp,  17  How.  168 ;  Church,  v.  Cherryfield,  33  Me 


10  DRIVING. 

with  a  smirk  asked  me  if  I  was  going  to  sue  for 
damages.  Sadly,  as  I  twisted  my  head  slowly 
round  and  nodded  first  to  right  and  then  to  left, 
to  see  if  the  vertebrae  were  all  in  workino-  order, 

O  7 

I  replied  :  — 

"  Ah,  no  !  I  cannot  do  so  with  success.1  It 's  a 
case  of  damnum  absque  injuria" 

"  Ho  !  ho  !  "  laughed  my  companion  ;  "  strong 
language  ;  but  no  wonder." 

"  If  the  owner  of  the  house  had  left  the  ice  and 
snow  there  for  an  unusual  and  unreasonable  time 
after  he  knew  of  its  presence  and  might  have  re 
moved  it,  he  probably  would  have  been  liable  to 
me,2  or,  if  that  old  awning  had  fallen  on  me,3  or  if 
that  lamp  hanging  over  the  Sol's  Arms'  door  had 
lighted  on  my  crown,  producing  an  extra  bump, 
for  the  edification  of  Fowler  and  Wells  and  the 
savants  of  that  ilk,  I  might  have  got  something 
in  the  first  case  out  of  the  city ;  in  the  other  from 
the  landlord.4  Or  if  one  of  those  barrels  had 
rolled  out  of  that  warehouse,  and,  thumping  against 
your  legs,  had  brought  you  down,  you  might  have 
sued  the  merchant."  5 

"  Look  at  that  poor  old  woman  ;  she  will  come 
to  grief  most  assuredly." 

Before  us  toddled  an  aged  granny,  assisting  her 

1  Hixon  v.  Lowell,  13  Gray,  59. 

2  Shipley  v.  Fifty  Associates,  101  Mass.  251 ;  S.  C.  106  Mass.  194. 

3  Drake  v.  Lowell,  13  Met.  292. 

«  Tarry  v.  Ashton,  L.  R.,1  Q.  B.  D.  314. 

s  Byrne  r.  Boadle,  2  II.  &  C.  722  ;  Randleson  v.  Murray,  8  Ad.  &  E.  109. 


DRIVING.  11 

septuagenarian  extremities  with  an  antique  look 
ing  umbrella,  of  no  color  known  to  this  life.  It 
was  of  a  "  flabby  habit  of  waist,  and  seemed  to  be 
in  need  of  stays,  looking  as  if  it  had  served  the 
old  dame  for  long  years  as  a  cupboard  at  home,  as 
a  carpet-bag  abroad." 

"  So  feeble  a  person  should  not  be  out  in  such 
slippery  weather  unattended  ; 1  people  should  exer 
cise  common  prudence.  One  who  has  poor  sight 
should  take  greater  care  in  walking  the  streets 
than  one  in  full  enjoyment  of  her  faculties."  2 

"  I  fancy  the  least  obstacle  or  hole  would  upset 
her,"  said  Tom.  • 

"And  if  she  did  stumble  over  a  small  impedi 
ment  she  could  not  sue  the  city  for  damages.  So 
the  court  held  where  a  man  fell  over  the  hinge  of 
a  trap-door  projecting  a  couple  of  inches  above 
the  sidewalk  in  a  village.3  But  the  degree  of  re 
pair  in  which  the  walks  must  be  kept  depends  con 
siderably  upon  the  locality ;  one  may  reasonably 
expect  better  pavements  in  a  city  than  in  a  village  ; 
and  so  in  Boston  where  an  iron  box  four  inches 
square,  set  in  a  sidewalk  by  a  gas  company,  had 
a  rim  projecting  an  inch  above  the  level,  the  city 
was  held  responsible  for  injuries  caused  by  it."  4 

"  If  she  did  meet  with  an  accident  and  was  held 
entitled  to  damage,  what  would  she  get  in  hard 
cash?  "  asked  Jones. 

1  Davenport  v.  Ruckman,  37  N.  Y.  568. 

a  Winn  v.  Lowell,  1  Allen,  180. 

3  Ray  v.  Petrolia,  24  C.  P.  Ont.  73. 

*  Loan  v.  Boston,  106  Mass.  450 ;  Bacon  v.  Boston,  3  Gush.  174. 


12  DRIVING. 

"  'Tis  impossible  to  say.  It  would  depend  upon 
so  many  things.  In  one  case  where  an  old  man 
of  seventy,  who  was  very  feeble,  fell  at  night  into 
an  opening  for  a  drain  in  the  sidewalk,  which  was 
covered  with  boards  laid  at  right  angles  with  the 
others  and  projecting  some  two  inches,  over  which 
he  stumbled,  the  jury  gave  $4,000  damages ;  but 
the  court  held  that  excessive,  as  the  old  man  was 
insolvent  and  incapable  of  much  labor."  l 

"  That  was  a  large  sum  for  injuries." 

"  But  the  old  fellow  died.  We  go  in  here,"  I 
added. 

"You  may,  I  will  not,"  replied  Jones,  as  he 
leant  against  the  railing  of  a  bridge  over  a  little 
stream. 

"  Well,  do  not  stand  there  ;  if  the  board  gives 
way  and  lets  you  down,  you  will  have  no  remedy 
against  the  city ;  for  it  is  not  bound  to  keep  up 
railings  strong  enough  for  idlers  to  lounge  against, 
or  children  to  play  upon.2  Look  out,  there  is 
another  sled  !  "  As  I  rang  the  door-bell  I  heard 
Jones  mutter :  — 

u  Those  boys  ought  to  be  indicted  for  obstruct 
ing  the  sidewalk  in  such  a  way." 

"  True  for  you,"  I  mentally  ejaculated,  "  I  re 
member  that  one  of  those  bewitched  and  besad- 
dled  wheelbarrow  concerns,  yclept  velocipedes,  was 
held  to  be  an  indictable  obstruction."  3 

1  Hutton  v.  Windsor,  34  Q.  B.  Ont.  487. 

2  Stickney  v.  Salem,  3  Allen,  374  ;  Gregory  v.  Adams,  14  Gray,  242. 

3  Reg.  v.  PJummer,  30  Q.  B.  Ont.  41. 


DRIVING.  13 

In  due  time  my  servant  met  us  with  the  sleigh, 
and  off  we  went,  bells  jingling,  horse  prancing, 
dog  barking,  all  joyous  with  the  exhilarating  in 
fluences  of  frost  and  sunshine. 

"  Look  here,  old  fellow,"  said  Tom,  "  your 
horse  seems  pretty  skittish  to-day ;  let  us  settle 
the  law  as  to  our  mutual  liability  for  damages 
before  we  run  into  anything.  Who  will  have  to 
pay  ?  You  don't  seem  very  much  accustomed  to 
driving." 

"  Never  mind  that.  The  law  is  clear ;  as  you 
are  merely  a  passenger  in  my  sleigh,  you  are  not 
responsible  for  any  misconduct  of  which  I  may  be 
guilty  while  driving ;  you  have  nothing  to  do 
with  the  concern.1  Even  if  I  had  only  borrowed 
the  turn-out,  and  kindly  let  you  take  the  ribbons, 
I  still  would  be  the  party  responsible  for  negli 
gence."  2 

"  That  's  satisfactory,"  returned  my  friend. 
"  But  would  it  not  be  different  if  we  had  both 
hired  the  horse  and  cutter  ?  " 

"  Quite  correct,  Mr.  T.  J. ;  your  store  of  legal 
lore  is  rapidly  accumulating.  In  the  case  you 
put,  both  of  us  would  be  equally  answerable  for 
any  accident  arising  from  the  misconduct  of  either 
whilst  it  was  under  our  joint  care,3  and  if  we  had 
hired  the  horses  to  draw  my  sleigh,  and  had  like 
wise  obtained  the  services  of  a  driver,  then  we 

1  Davey  v.  Chamberlain,  4  Esp.  229. 

2  Wheatley  v.  Patrick,  2  M.  &  W.  650. 
s  Davey  v.  Chamberlain,  4  Esp.  229. 


DRIVING. 

would  not  be  liable  for  the  negligence  or  careless 
ness  of  that  driver."  * 

"  Look  out !  you  had  better  keep  on  your  own 
side  of  the  road,"  said  Jones. 

"  Never  mind,  I  can  go  on  either  side.  I  '11  only 
have  to  keep  my  eye  a  little  wider  open  to  avoid 
collisions ; 2  besides,  there  is  plenty  of  room  for  any 
person  to  pass,  so  he  would  have  only  himself  to 
blame  in  case  of  accidents."  3 

"  A  person  approaching  you  might  think  there 
was  not  sufficient  space." 

"  If  an  accident  happens,  it  will  be  a  matter  of 
evidence  whether  I  have  left  ample  room  or  not ; 4 
so  you  can  look  about  you  and  see." 

"But  suppose  some  fiery  steed  was  to  run  into 
yours?"  urged  Thomas,  "or  you  upset  in  the 
ditch  ?  " 

"  My  being  on  the  wrong  side  would  not  pre 
vent  my  recovering  against  a  negligent  driver,  as 
long  as  there  is  room  for  him  to  pass  without  in 
convenience.5  Nor  would  it  interfere  with  my 
getting  damages  from  the  city  for  injuries  caused 
by  their  defective  roads.6  Whoa,  old  fellow !  "  I 
cried,  just  as  I  was  on  the  point  of  running  over 
a  philosopher  who  was  walking  slowly  over  a 

Laugher  r.  Pointer,  5  B.  &  C.  547  ;  Quarman  v.  Burnett,  6  M.  &  W.  499. 
Pluckwell  v.  Wilson,  5  C.  &  P.  375. 
Chaplin  v.  Ilawes,  3  C.  &  P.  554. 
Wordsworth  v.  Willan,  5  Esp.  273. 
Clay  v.  Wood,  5  Esp.  44. 

Baker  v.  Portland,  10  Am.  Law  Reg.  (N.  S.),  559,  58  Me.  199  ;  Gale  v.  Lis 
bon,  52  N.  II.  174. 


DllIVING.  15 

crossing  gazing  up  at  the  azure  vault  of  heaven. 
"  What  a  stupid  donkey ;  it  is  as  much  his  busi 
ness  to  be«  watchful  and  cautious  that  he  does  not 
get  under  my  sleigh,  as  it  is  mine  that  my  sleigh 
does  not  get  over  him  !  *  It  is  gross  carelessness 
for  one  to  attempt  to  cross  a  street  when  he  sees 
a  horse  and  vehicle  coming  rapidly  along  ;  and  if 
that  fellow  had  been  injured,  he  could  have  got 
nothing  out  of  me.2  A  man  who*  does  not  use  all 
his  senses  when  crossing  a  highway  is  guilty  of 
contributory  negligence,  and  so  loses  all  right  of 
action."  3 

"  Yes,"  said  T.  J.  "  Still  a  foot  passenger  has 
a  clear  right  to  cross  a  road,  and  persons  driving 
must  avoid  running  him  down  ;  it  will  be  no  valid 
excuse  that  one  could  not  pull  up  his  nag  for  fear 
of  the  reins  breaking,  for  he  should  have  good 
harness.4  But  we  may  pass  a  pedestrian  prome 
nading  on  the  road  on  whichever  side  is  most  con 
venient,  for  the  rules  of  the  road  do  not  apply  to 
walkers  ;  5  they  have  no  prior  right  of  way."  6 

"  No ;  men  walking  and  driving  have  equal 
rights  on  the  streets  ;  all  must  exercise  care  and 
prudence  ; 7  and  a  pedestrian  should  not  indulge 
in  nice  calculations  of  chances,  and  run  the  gaunt 
let  of  carriages  in  crossing  a  road."  8 

Williams  v.  Richards,  30.  &  K.  81. 
Woolf  r.  Beard,  8  Car.  &  P.  373. 

Gray  v.  Second  Avenue  E.  R.  Co.,  34  N.  Y.  Sup.  Ct.  (2  Jones  &  Spencer), 
ol9. 

Cotterill  r.  Starkey,  8  C.  &  P.  691. 

Cotterill  v.  Starkey,  supra;  Lloyd  v.  Ogleby,  5  C.  B.  (N.  S.),  667. 

Bclton  v.  Baxter,  14  Abb.  (N.  Y.)  Pr.  (N.  S.)  404. 

Brooks  v.  Schwerin,  54  N.  Y.  343.  8  'Bclton  i:  Baxter,  supra 


16  DRIVING. 

"  I  was  out  driving  last  Sunday "  —  Jones 
began. 

"  Oh,  you  naughty  man !  "  I  cried.  "  Have 
you  no  respect  for  the  Sabbath  day  ?  or  perhaps 
you  wanted  to  have  a  ride  without  giving  a  quid 
pro  quo  ?  " 

"  How  could  I  do  that  ?"  queried  my  friend. 

"Don't  you  know,"  replied  I,  /'that  a  man 
cannot  recover  for  the  hire  of  a  horse  and  buggy, 
let  on  Sunday  for  a  pleasure  drive  ?  1  But  if  the 
livery  man  imagined  that  the  errand  on  which  you 
were  bound  was  one  of  necessity  or  charity,  he 
would  not  be  punishable  for  a  breach  of  the  Sun 
day  laws."  2 

u  Well,  but  my  drive  was  a  work  of  charity 
(according  to  its  original  meaning),  if  not  of  ne 
cessity.  I  was  going  to  see  Miss  Blank." 

u  That  very  point  was  raised  sometime  since 
in  Massachusetts,  where  travelling  on  the  Lord's 
Day  is  forbidden.  A  young  man,  who  had  to 
work  all  the  week,  was  going  to  visit  his  be 
trothed  on  Sunday,  when  he  came  to  grief  through 
a  defect  in  the  highway.  The  question  whether 
this  might  not  have  been  a  work  of  necessity  or 
charity,  was  raised,  but  unfortunately,  the  matter 
was  not  decided.3  In  one  case,  however,  it  was 
held  that  a  man  might  lawfully  hire  a  horse  and 
carriage  to  go  and  visit  his  paternal  progenitor, 

i  Berrill  v.  Smith,  2  Miles,  402. 

*  Myers  v.  The  State,  1  Conn.  602. 

8  Bufflnton  v.   Swansey,  2  Am.  Law  Rev.  235. 


DRIVING.  17 

who  resided  in  the  country.1  In  some  of  the 
States,  where  the  laws  for  the  observance  of  the 
Sabbath  are  rigorous,  and  travelling  on  that  day 
is  forbidden,  young  swells  hire  horses  and  race 
them,  knowing  that  they  will  not  have  to  pay  for 
any  injuries  done  to  the  old  nags  ; 2  not  even  if 
they  die  from  the  Jehu-like  driving.3  But,  come, 
let  us  hear  more  about  Miss  Blank,  Joney,  my 
boy." 

"  I  presume,"  said  Jones,  "that  one  hurt  while 
travelling  would  have  to  show  that  the  journey 
was  from  necessity  or  charity  ?  Would  one  have 
to  stay  in  the  house  all  day  ?  " 

44  Oh,  no  ;  even  in  Puritanic  Boston  it  has  been 
decided  that  walking  half  a  mile  or  so  in  the 
streets  on  a  Sunday  evening,  without  any  inten 
tion  of  going  anywhere  save  home  again,  is  not 
travelling  within  the  meaning  of  the  act.4  And 
of  course  one  may  .go  to  church  or  to  his  place  of 
worship,  no  matter  what  may  be  the  style  of  the 
ceremony.  Once  Mrs.  Feital,  a  Spiritualist,  went 
to  a  camp-meeting  where  Miss  Ellis  was  put  in  a 
box  with  her  hands  tied  :  music  was  heard  coming 
from  the  box,  and  when  it  was  open  Miss  Ellis 
was  found  with  her  hands  untied,  and  a  ring  that 
had*been  on  her  finger  was  then  on  the  end  of  her 
nose.  On  her  way  home  from  these  amusing,  if 

1  Logan  v.  Mathews,  6  Penn.  St.  417. 

2  Gregg  v.  Wyman,  4  Gush.  322  ;  but  see  Hall  v.  Corcoran,  107  Mass.  251. 

3  Morton  v.  Gloster,  4ft  Me.  520. 

*  Hamilton  v.  Boston,  14  Allen,  475. 
W.  &R.  OFT.— 2 


18  DRIVING. 

not  instructive  services,  Mrs.  Feital  broke  her 
leg  on  the  cars.  The  railway  company,  tried  to 
prove  that  this  was  not  divine  service,  but  the 
jury  gave  a  verdict  of  15,000  damages,  and  the 
court  refused  to  interfere.1  On  the  other  hand, 
a  poor  sinner  who  was  injured  on  a  horse  car 
while  going  to  visit  a  friend,  was  held  to  have 
violated  the  sanctity  of  the  Sabbath  and  broken 
the  law  of  the  land,  and  so  was  precluded  from 
recovering  damages."2 

"But  is  not  the  rule  in  Massachusetts  excep 
tional  ?  "  queried  my  companion. 

"  In  Vermont  and  Maine,  as  well  as  in  Massa 
chusetts,  it  has  been  held  that  if  one  is  driving  or 
travelling  on  Sunday,  without  excuse,  he  cannot 
maintain  an  action  against  the  municipality  for 
any  damage  he  may  suffer  through  defects  in  the 
highway,  on  the  ground  that  the  town  is  not 
legally  liable  to  furnish  a  man  with  a  safe  high 
way  at  a  time  when  he  is  by  law  forbidden  to 
travel  on  it.3  Some  of  the  decisions  in  these 
States  depend  upon  the  peculiar  legislation  and 
custom  of  the  State,  more  than  on  any  principle 
of  justice  or  law;4  and  they  cannot  be  sustained 
consistently  with  the  broad  principles  of  the  law 

1  Feital  v.  Middlesex  R.  R.  Co.,  109  Mass.  398. 

2  Stanton  v.  Metropolitan  Rvv.,  2  Am.  Law  Rev.  234. 

3  Johnson  v.  Warburgh,14  Am.  Law  Reg.  647  ;  Jones  v.  Andover,  10  Allen, 
18;  Bosworth  v.  Swansey,  10  Met.  363;  Hinckley  v.  Penobscot,  42  Me.  89; 
Bryant  v.  Biddcford,  59  Me.  193. 

*  Per  drier,  J.     Phil.,  etc.,  R.  R.  Co.  v.  Phil.,  etc.,  Towboat  Co.,  23  How 
209. 


DRIVING.  19 

of  negligence  laid  down  by  the  courts  generally.1 
The  fact  that  one  was  doing  an  unlawful  act  when 
injured  will  not  prevent  a  recovery,  unless  the  act 
was  such  as  would  naturally  tend  to  produce  the 
injury.2  If  one  breaks  the  law,  the  law  itself, 
and  not  a  carrier  or  town,  should  inflict  the  pen 
alty.  In  other  States, —New  Hampshire,  New 
York,  Pennsylvania,  Wisconsin,  for  example,  one 
can  sue  for  damages  though  injured  while  travel 
ling  on  Sunday.3  And  in  England  Sunday  trav 
ellers  are  especially  favored  by  the  legislature,  for 
to  none  others  can  the  publican  dispose  of  beer, 
wine  or  spirits  on  that  day.4  But  come,  what 
about  Miss  Blank  ?  " 

"  By  the  way,"  said  Jones,  "  have  you  seen 
that  anecdote  told  by  Erskine  about  Lord  Ken- 
yon,  and  which  has  recently  been  brought  to 
light?" 

"  No.  Has  it  anything  to  do  with  driving  ?  " 
'I  Everything.  Kenyon  was  trying  a  case  at  the 
Guildhall  and  seemed  disposed  to  leave  it  to  the 
jury  to  say  whether  the  plaintiff  might  not  have 
saved  himself  from  being  run  into  by  the  defend 
ant  by  going  on  to  the  wrong  side  of  the  road, 
where  —  according  to  the  witnesses  —  was  ample 
room ;  so  Lord  Erskine  in  addressing  the  jury 

1  Wharton  on  Negligence,  §  405. 

2  Wharton  on  Negligence,  §  331,  and  cases  cited. 

3  Sutton  v.  Wauvvantosa,  29  Wis.  21 ;  Button  v.  Weare,  17  N.  II  34  •  Moh 
ney  v.  Cook,  26  Pa.  St.  342  ;  Etchberry  v.  Levielle,  2  Hilton  (N.  Y  )  40 

4  Byles,  J.    Taylor  v.  Humphreys,  10  C  B.  (N.  S.),  429. 


20  DRIVING. 

said  :  '  Gentlemen,  —  If  the  noble  and  learned 
judge,  in  giving  you  hereafter  his  advice,  shall 
depart  from  the  only  principle  of  safety  (unless 
where  collisions  are  selfish  and  malicious),  and 
you  shall  act  upon  it,  I  can  only  say  that  I  shall 
feel  the  same  confidence  in  his  lordship's  general 
learning  and  justice,  and  shall  continue  to  delight, 
as  I  always  do,  in  attending  his  administration  of 
justice:  but  I  pray  Grod  that  I  may  never  meet 
him  on  the  road  !  '  Lord  Kenyon  laughed,  and  so 
did  the  jury,  and  in  summing  up  the  judge  told 
them  that  he  believed  it  to  be  the  best  course 
stare  super  antiquas  vias." 

"  Not  so  bad  !  " 

On  and  on  we  drove ;  the  very  air  seemed  alive 
with  the  tintinnabulation  that  so  musically  wells 
from  the  jingling  and  the  tinkling  of  the  bells  in 
the  icy  air  of  winter. 


A    SLEIGH    DRIVE.  21 


CHAPTER  II. 

A   SLEIGH  DEIVE. 

Fast  Driving. —  Teams  passing. —  Clearing  Snow. —  Impassable  Roads. 
—  Stuck  in  a  Snow-drift. —  Upset. — Demolishing  Juveniles.  —  Mind 
your  Children.  —  In  the  Ditch.  —  Damages  for  Bad  Roads.  —  Unsafe 
Bridges.  — Horses  shying.  —  Whisking  Tails.  —  Runaways. 

ALL  the  morning 

"  Out  of  the  bosom  of  the  air, 

Out  of  the  cloud-folds  of  her  garments  shaken, 
Over  the  woodlands  brown  and  bare, 
Over  the  harvest  fields  forsaken, 
Silent,  and  soft,  and  slow, 
Descended  the  snow," 

But  when  the  sun  turned  downwards  towards  his 
couch,  he  shone  out  clear  and  bright,  making  every 
snow-flake  glisten  and  sparkle  in  the  bracing  air ; 
so  Mrs.  L.  determined  to  utilize  the  splendid 
weather,  and  pay  a  round  of  country  visits.  Of 
course  I  had  to  drive  her. 

The  steeds  needed  no  whip  to  urge  them  on. 
Swiftly  we  glided  down  the  street,  and  over  the 
bridge  we  trotted  fast  without  drawing  rein.  The 
boards  creaked  and  cracked,  as  when  one  strives 
to  creep  upstairs,  unheard,  at  midnight.  My  wife 
said  in  surprise  :  — 

"  Eldon,  did  you  not  observe  the  notice  threat- 


22  A    SLEIGH    DRIVE. 

ening  prosecution  according  to  the  utmost  rigor 
of  the  law  to  all  crossing  the  bridge  quicker  than 
at  a  walk  ?  Why  do  lawyers  break  the  law  ?  " 

"  All  right,  my  dear ;  if  the  bridge  had  broken 
down  while  we  were  trotting  over  it,  I  could  not 
have  sued  the  owners  for  damages.1  But  as  we 
are  over  it,  we  need  not  discuss  the  subject." 

"  But,"  urged  my  wife,  "  it  is  not  right  to  drive 
so  fast." 

"  No  ;  I  know  it.  In  fact  it  is  an  indictable 
offense  to  drive  through  crowded  streets  like  these 
so  as  to  endanger  the  safety  of  others."  2 

"  How  fast  may  one  go  ?  " 

"  That  is  difficult  to  say.  Depends  on  circum 
stances.  A  mile  in  four  minutes  is  too  fast ; 3  and 
if  you  go  a  mile  in  three  minutes  and  ten  seconds 
you  become  liable  for  all  consequences.4  Even 
where  a  man  was  driving  at  only  a  smartish  pace 
and  ran  over  a  donkey  he  had  to  pay  for  it.5  But 
one  may  drive  rapidly  on  an  open  country  road 
where  the  chance  of  collision  is  slight." 

"  Look  out,  Eldon  !  "  cried  my  gentle  spouse. 
44  See,  a  load  of  wood  has  just  upset  there  !  What 
a  nuisance  !  " 

44  Not  legally  so,  as  the  man  went  over  accident- 
ally."6 

Abbott  v.  Wolcott,  38  Vt.  666. 

U.  S.  v.  Hart,  Peters  C.  C.  390. 

Kennedy  v.  Way,  3  Law  Reporter  (N.  S.),  184,  Brightley  (Pa.),  186. 

Moody  v.  Osgood,  60  Barb.  644. 

Davies  v.  Mann,  10  M,  &  W.  545. 

Angell  on  Highways,  §  263. 


A    SLEIGH   DRIVE.  23 

As  we  drove  past  we  heard  the  woodman  com 
plaining  bitterly  that  a  sleigh  that  had  just  met 
him  had  not  turned  out  enough,  and  hence  his 
mishap. 

"  Too  bad,"  I  said ;  "  people  ought  to  show  an 
accommodating  spirit  and  cautious  watchfulness 
in  avoiding  difficulties  when  the  roads  are  so 
badly  blocked  with  snow."  1 

"  But,"  said  my  wife,  who  seemed  to  have  an 
idea  in  her  head,  —  there  was  an  abundance  of 
room  for  it,  —  of  qualifying  herself  to  carry  on  my 
business  if  some  unforeseen  event  should  chance 
to  carry  me  oft'  before  I  had  realized  some  little  in 
dependence.  "  But,  I  thought  the  towns,  or  cor 
porations,  were  bound  to  keep  their  roads  safe  and 
convenient.  I  am  sure  that  this  one  is  neither 
safe  nor  convenient  when  we  have  to  pass  any 
one." 

"  Your  supposition  is  correct.  The  rule  applies 
as  well  to  a  turnpike  company  as  to  a  town,2  and 
to  defects  and  obstructions  caused  by  drifts  of 
snow.3  Accumulations  of  snow  and  ice  must  be 
removed  so  that  streets  and  highways  may  be 
passable.4  Of  course  it  is  plain,  as  a  Canadian 
judge  once  remarked,  that  the  owner  of  a  road 
cannot  be  expected  to  clear  the  snow  off  the 
ground  whenever  it  falls,  or  even  to  remove  the 

1  Hull  v.  Richmond,  2  Wood.  &  M.  343. 

2  Mathews  v.  Winooski  Turnpike  Co.,  24  Vt.  480. 

3  Loker  v  Brookline,  13  Pick.  346  ;  Holman  v.  Townsend,  13  Met.  297. 

4  City  of  Providence  v.  Clapp,  17  How.  168. 


24  A    SLEIGH    DRIVE. 

ice  which  may  form  there.  It  would  frequently 
be  an  impossible  work  to  attempt  it,  and  it  would 
often  be  mischievous  and. a  nuisance  to  effect  it. 
Snow  forms  the  best  and  most  suitable  means  of 
travel  in  winter,  and  even  when  it  falls  to  a  great 
and  unusual  depth,  it  is  not  the  duty  of  any  one, 
as  a  rule,  to  remove  it  from  the  road.  Nor  can 
any  one  be  required  to  remove  mud  and  mire  from 
a  road.  There  are,  however,  cases  when  snow,  ice, 
and  mud  may  and  must  be  removed,  and  that  is 
when  they  cause  an  obstruction  or  danger  which 
can  properly  and  reasonably  be  removed.1 

"  If  the  corporation  neglects  its  duty,  what 
must  an  unfortunate  traveller  do  ?  " 

"  If  the  highway  is  impassable  for  any  reason, 
he  certainly  should  not  try  to  force  a  passage,  for 
he  would  not  be  able  to  recover  for  his  loss  of 
time,  or  his  trouble  and  expense  in  extricating  his 
team  from  a  snow-drift.2  But  he  may  go  upon  the 
adjoining  land,3  as  we  are  going  to  do  now." 

"  That  is  rather  hard  upon  the  poor  farmers," 
said  my  wife.  "  Why,  we  may  be  driving  over  a 
field  of  fall  wheat !  " 

"  That  makes  no  difference  ;  one  ought,  how 
ever,  to  keep  as  near  the  road  as  possible."  4 

"  It  takes  much  longer  going  by  this  circuitous 

i  Wilson,  J.    Caswell  v.  St.  Mary's,  etc.,  Road  Co.,  28  Q.  B.  (Ont.),  247. 

-  Brailey  v.  Southborough,  6  Gush.  ]41 ;  Willard  v.  Cambridge,  3  Allen, 
574.  In  Massachusetts  one  cannot  recover  damages  for  not  being  able  to  use 
the  road,  though  he  may  for  injuries  received  while  using  it. 

3  Woolrych  on  Ways  (2d  ed.),  78  ;  Campbell  v.  Race,  7  Gush.  408. 

«  Taylor  v.  Whitehead,  2  Dougl.  749 ;  Carrick  v.  Johnston,  26  Q.  B.  (Ont.), 
66. 


A    SLEIGH   DRIVE.  '25 

route,"  said  Mrs.  Lawyer,  with  a  woman's  im 
patience. 

"  Still,  unfortunately,  we  cannot  get  compensa 
tion  from  the  town  for  the  delay,  even  though  we 
had  to  neglect  important  business  in  consequence.1 
But  if,  in  addition  to  being  made  to  neglect  busi 
ness,  one,  after  commencing  his  journey,  is  obliged 
to  turn  back  and  go  by  a  very  roundabout  way, 
there  is  some  authority  to  show  that  he  may  get 
damages."  2 

For  some  minutes  we  had  been  winding  in  and 
out  among  lofty  pines  and  evergreens  with  boughs 
weighed  down  by  the  snow  upon  them,  which  was 
now  succumbing  to  the  warm  rays  of  the  sun. 
Something  caused  my  horses  to  shy  suddenly,  and 
over  we  went,  cutter,  wife,  buffaloes,  self,  and  all. 
Fortunately  our  steeds  did  not  run  off.  At  first, 
when  I  saw  my  spouse  lying  extended  on  the 
ground,  I  was  alarmed,  but  she  quickly  reassured 
me  by  exclaiming  :  — 

"  Pleasant  it  is,  when  woods  are  green, 

And  winds  are  soft  and  low, 
To  lie  amid  some  sylvan  scene, 
Where,  the  long  drooping  boughs  between, 
Shadows  dark  and  sunlight  sheen, 
Alternate  come  and  go. 

"  Beneath  some  patriarchal  tree 

I  lie  upon  the  'snaw.' 
His  hoary  arm  uplifted  he, 
And  all  the  white  leaves  over  me 
Dripping  their  little  drops  in  glee, 
In  one  continuous  thaw." 

1  Hubert  v.  Groves,  1  Esp.  148  ;  Griffin  v.  Sanbornton,  44  N.  II.  246. 

2  Greasley  v.  Codling,  2  Bing.  263. 


26  A    SLEIGH    DRIVE. 

"  Come,  come,  get  up,"  I  said.  "  Don't  lie  there 
playing  the  improvisatore  and  taking  your  death 
of  cold,  for  I  fear  me  I  could  not  recover  damages, 
although  we  had  to  come  in  here  because  the  road 
was  impassable,  as  I  knew  it  was  so  before  I  set 
out,  and  therefore  ought  to  have  gone  some  other 
way  and  not  have  come  into  this  bush  at  my  peril."1 

Soon  all  was  again  as  it  had  been,  and  merrily 
onward  we  went,  now  and  then  calling  at  a  house 
for  a  few  minutes,  and  then  on  and  on  and  on. 
The  day  was  too  gloriously  bright  to  spend  much 
time  with  our  friends  talking  scandal.  We  came 
upon  some  children  engaged  in  the  exhilarating 
amusement  of  sliding  down  hill,  and  one  of  them 
we  nearly  annihilated.  The  horses'  feet  were  well 
nigh  upon  him  before  we  noticed  his  little  red 
brick-top  standing  out  in  bold  relief  against  the 
pure  white  snow. 

"  Ha !  "  I  said,  with  a  sigh  of  relief,  "  't  is 
well  we  did  not  knock  the  youngster  into  a  cocked 
hat.  It  might  have  taken  a  good  slice  off  my 
year's  profits  if  I  had.  I  remember  a  man  who 
was  driving  a  loaded  team  down  a  hill  at  no  snail's 
pace,  when  he  came  upon  a  little  rascal  (not  four 
years  old)  on  his  way  to  school,  and  who  —  to 
relieve  the  monotony  of  the  journey  —  was  sliding 
down  the  hill  (near  the  edge  of  the  road)  lying 
upon  his  potatoe  pouch  on  his  hand-sleigh, .  his 
face  turned  towards  the  right,  his  legs  Y-like 

i  Tisdale  v.  Norton,  8  Met.  388. 


A    SLEIGH    DRIVE.  27 

stretching  out  behind  in  the  opposite  direction. 
At  a  distance  the  man  had  taken  the  boy  for 
a  dog,  then  as  he  came  nearer  he  thought  the 
child  would  get  out  of  the  way,  and  when  at 
length  he  did  himself  try  to  turn  out,  —  although 
there  was  plenty  of  room, —  still  the  hind  runners 
injured  the  boy's  left  leg  so  much  that  amputation 
was  necessary.  The  man  had  to  pay  heavy  dam 
ages  for  the  injuries  he  had  inflicted."  * 

"  It  seems  hard  that  one  should  have  to  pay 
for  a  parent's  negligence  in  allowing  such  infants 
to  wander  about  by  themselves,"  said  Mrs.  L. 

"  Occasionally  the  tables  are  turned.  Mr.  Roper 
was  once  driving  in  his  sleigh  at  a  gentle  trot 
(there  were  some  of  his  family  with  him  and 
strange  to  say  they  were  not  talking),  when  at 
the  foot  of  a  hill  they  ran  over  a  baby  two  years 
old  that  was  sitting  in  the  snow  in  the  middle  of 
the  road  all  by  himself.  The  jury  gave  the  child 
a  verdict  of  $500,  but  the  court  would  not  hear 
of  such  a  thing,  considering  that  the  parents  had 
been  guilty  of  criminal  negligence  in  suffering 
the  child  to  be  in  such  a  place."  2 

"  I  guess  that  court  was  composed  of  old  bache 
lors,"  exclaimed  my  wife  in  indignant  accents. 

"  Well,  my  dear,  even  married  judges,  and  those 
who  have  been  blessed  with  quivers  full  of  those 
sharp  things,  children,  have  declared  the  rule  to 

1  Robinson  v.  Cone,  3  Law  Reporter  (N.  S.),  444;  22  Vt.  213. 

2  Ilartfield  v.  Roper  21  Wend.  615  ;  but  see  post. 


28  A    SLEIGH    DRIVE. 

be  that,  if  the  plaintiff's  negligence  in  any  way 
concurred  in  causing  the  damage,  he  cannot  re 
cover  unless  he  could  not,  by  the  exercise  of  or 
dinary  care,  have  avoided  the  injury,  or  the  de 
fendant  has  been  guilty  of  gross  negligence,  or 
intentionally  did  the  wrong."  1 

A  little  feminine  chit-chat  now  occupied  our 
attention ;  criticism  concerning  the  friends  we  had 
been  visiting,  their  foibles  and  weaknesses  ;  specu 
lations  as  to  the  incomes  of  the  husbands,  the 
age  of  the  wives,  and  such  like  remarks  which 
absorb  such  a  large  proportion  of  the  atmospheric 
air  that  is  converted  into  language. 

In  passing  a  man,  he  would  not  turn  out,  and 
I  grazed  his  horses'  legs,  causing  the  animals  to 
plunge  and  kick  so  as  to  knock  the  cutter  about 
considerably  ;  but  seeing  that  the  fellow  was  drunk 
and  not  able  to  drive  properly,  I  was  not  at  all 
alarmed  about  any  damage  I  might  have  done,  for 
I  knew  that  I  could  not  be  held  responsible.2 

The  sun  had  gone  to  rest ;  the  stars  were  com 
ing  out  one  by  one,  dotting  the  vault  of  heaven  as 
with  sparkling  gems.  We  heard  in  the  distance  the 
ringing  laughter  and  the  tinkling  bells  of  a  merry 
driving  part}7.  My  wife  exclaimed  :  — 

"  Hear  the  sledges  with  the  bells, 

Silver  bells  ! 
What  a  world  of  merriment  their  melody  foretells  ! 

1  Barnes  v.  Cole,  21  Wend.  188 ;  Bridge  v.  Grand  Junction  Rw.,  3  M.  &  W 
246. 

2  Cassedyr.  Stockbridge,  21  Vt.  391. 


A    SLEIGH    DRIVE.  29 

How  they  tinkle,  tinkle,  tinkle, 

In  the  icy  air  of  night ! 

While  the  stars  that  oversprinkle 

All  the  heavens,  seem  to  twinkle 

With  a  crystalline  delight : 

Keeping  time,  time,  time, 

In  a  sort  of  Runic  rhyme, 
To  the  tintinabulation  that  so  musically  wells 
From  the  bells,  bells,  bells,  bells, 

Bells,  bells,  bells  — 
From  the  jingling  and  the  tinkling  of  the  bells." 

We  were  at  this  time  driving  down  in  a  ditch  for 
the  sake  of  the  snow  (the  road  itself  being  well- 
nigh  bare),  and  just  as  my  wife  concluded  her 
poetic  quotation  over  we  turned.  Luckily  fortune 
again  favored  us,  for  my  deviating  from  the  right 
path  without  sufficient  cause  would  have  prevented 
my  recovering  for  any  damage  we  might  have  suf 
fered.  l  One  voluntarily  encountering  perils  in  the 
dark  does  so  at  his  own  risk.  2 

My  wife  impatiently  suggested  that  she  had 
better  take  the  reins.  I  told  her  that  she  could 
reign  at  home,  but  that  if  she  was  driving  and  we 
really  met  with  an  accident,  twelve  jurymen  would 
have  to  inquire  into  her  capacity  and  the  horses' 
character,3  in  considering  whether  ordinary  care 
had  been  exercised,  and  the  less  said  on  the  first 
subject  the  better. 

"  For  goodness'  sake,  then,  tell  me  what  I  can 
get  if  I  am  hurt  on  these  abominable  roads," 
she  pettishly  asked. 

1  Rice  v.  Montpelier,  19  Vt.  470;  Tisdale  v.  Norton,  8  Met.  388, 

2  Mt.  Vernon  v.  Dusouchett,  2  Cart.  586. 
s  Cobb  v.  Standish,  14  Me.  198. 


30 


A    SLEIGH    DRIVE. 


"  Well,"  I  said,  clearing  my  throat  for  a  speech, 
"  if  the  town  is  to  blame  for  the  state  of  the  road, 
it  is  liable  for  the  direct  and  immediate  losses  oc 
casioned  by  the  accident.1  In  some  cases  /  could 
recover  for  the  loss  of  your  services  and  the  ex 
penses  of  your  sickness  ;  2  although  in  Maine  and 
Connecticut  it  has  been  decided  otherwise.3  If  I 
myself  were  injured,  I  could  get  recouped  for  my 
loss  of  time  and  medical  expenses.4  Where  the 
exertions  of  the  plaintiff  in  endeavoring  to  rescue 
his  horses,  which  had  broken  through  a  bridge,  his 
exposure  to  the  elements  and  his  agitation  —  all 
the  direct  result  of  the  defect  in  the  bridge  —  pro 
duced  epilepsy  and  made  the  man  a  wreck  in  body 
and  mind  (the  doctors  said  the  disease  usually  ter 
minated  in  paralysis  and  mental  imbecility),  the 
jury  gave  the  man  $500  in  compensation,  and  the 
judges  thought  it  was  none  too  much."  5 

"I  should  think  not.  It  must  be  a  poor  body 
and  mind  to  be  worth  no  more  than  that." 

"  Where,"  I  continued,  "  Mrs.  Toms  and  her 
eight-year  old  boy  were  crossing  a  bridge  in  their 
buggy,  the  horse  shied  at  some  new  planks  on 
the  bridge,  backed  to  the  edge  and  the  hind 
wheels  over  a  bank,  Mrs.  Toms  tumbled  out  into 
the  water  some  fourteen  feet  below,  the  jury 

*  Jenks  *.  Wilbraham,  11  Gray,  142. 

2  Hunt  v.  Winfield,  36  Wis.  154  ;  Woodman  v.  Nottingham,  49  N.  II.  387. 

3  Reed  v.  Belfast,  20  Me.  246 ;  Chidsey  i-.  Canton,  17  Conn.  475. 

*  Sandford  v.  Augusta,  32  Me.  536. 
8  Jaquish  v.  Ithaca,  36  Wis.  111. 


A    SLEIGH    DRIVE.  31 

considered  that  she  had  been  driving  in  a  proper 
manner  and  that  the  road  ought  to  have  had 
guards  along  the  embankment.  The  court  agreed 
with  them,  and  held  the  township  liable  to  make 
good  her  wounds  and  bruises  ;  the  want  of  rail 
ings  was  deemed  the  proximate  cause  of  the  in 
jury,  and  not  the  horse  becoming  frightened  or 
unmanageable.1  A  road  which  passes  over  a 
bank  or  bridge,  or  along  a  precipice,  should 
always  be  properly  guarded.2  It  seems  that  in 
the  States  of  Vermont  and  Massachusetts  corpo 
rations  will  be  held  liable  for  injuries  (caused  by 
defective  ways)  which  are  primarily  imputable 
to  pure  accident  (that  is  to  an  unexpected  occur 
rence  or  event  for  which  no  one  is  responsible),  if 
the  accident  happened  without  the  fault  of  the 
injured  one,  and  is  such  that  common  prudence 
could  not  have  foreseen  or  guarded  against,  and  if 
without  the  defect  it  would  not  have  occurred.3 
Where,  for  instance,  a  runaway  was  crowded 
against  the  plaintiff's  nag,  owing  to  an  obstruction 
in  the  road,  the  town  was  held  liable  ;  for  streets 
should  be  so  made  as  to  be  reasonably  safe  when 
such  accidents,  as  may  reasonably  be  expected 
occasionally  to  happen  in  the  best  regulated 
places,  do  occur.4  And  so  when  a  carriage  ran 
away  with  the  people  in  it  by  itself  and  over  an 

1  Toms  v.  Whitby,  36  Q.  B.  (Ont.)  195  ;  S.  C.,  In  Appeal,  37  Q.  B.  100. 

2  Bliss  v.  Deerfield,  13  Pick.  102  ;  Davis  v.  Hill,  41  N.  II.  329. 
8  Palmer  v.  Andover,  2  Cush.  601. 

*  Kelsey  v.  Glover,  15  Vt.  708 ;  Swift  v.  Newbury,  36  Vt.  355. 


32  A    SLEIGH    DRIVE. 

embankment.1  And  all  roads  ought  to  be  wide 
enough  to  allow  of  the  ordinary  shyings  and 
frights  of  horses  with  safety,  for  shying  is  one  of 
the  natural  habits  of  the  animal,2  and  it  must  be 
in  such  repair  that  even  skittish  creatures  may  be 
driven  without  any  risk  of  danger  from  its  condi 
tion.3  The  road,  however,  need  not  afford  a  per 
fectly  clear  track  to  a  runaway  horse."  4 

"I  wish  that  horse  would  stop  switching  his 
tail  about,"  remarked  my  wife. 

"  A  very  sensible  desire  on  your  part ;  for  it 
has  been  decided  in  Massachusetts  that  the  liabil 
ity  of  a  town  for  accidents  arising  from  defects  in 
a  highway  is  removed  if  the  defect  could  have 
been  avoided  had  not  the  horse  by  throwing  its 
tail  over  the  reins  freed  itself  from  the  driver's 
control  and  so  knocked  the  carriage  against  the 
obstacles  complained  of."  5 

"It  is  a  pity  that  judges  have  not  something 
better  to  do  than  consider  the  shakings  of  a 
horse's  tail,"  said  my  wife,  who  seemed  to  be 
growing  cross. 

"  'T  is  a  pity  that  they  decided  as  they  did, 
for  one  can  scarcely  believe  that  the  tossing  of 
tails  over  the  reins  is  one  of  those  extremely  un 
likely  and  abnormal  acts  which  are  considered 

Palmer  v.  Andorer,  2  Gush.  601. 

Houfe  v.  Fulton,  29  Wis.  296 ;   Stone  v.  Hubbardston,  100  Mass.  49 ; 
lley  v.  Fond  du  Lac,  31  Wis.  180. 
Lower  Macungie  Tp.  v .  Merkhoffcr,  71  Penn.  St.  277. 
Wharton  on  Neg.'f  105. 
*  Fogg  v.  Nahant,  98  Mass.  578;  S.  P.,  106  Mass.  278. 


A    SLEIGH    DRIVE.  "33 

acts  of  God,  and  which  ordinary  sagacity  cannot 
foresee  ;    it  seems  rather  an  ordinary  incident  of 
travel  and  so  a    contingency   against  which   the 
road-maker    should  provide.1     However,    to    con 
tinue    the   subject    on    which  I    was  dilating,  al 
though  a  traveller  is  bound  to  have  his  carriage 
and  harness  in  good  road-worthy  condition,  or  else 
bear    quietly  the    pains    and    penalties,2    still   he 
need  not  always  see  that  his  carriage  is  perfect, 
his  team  of  the  most  manageable  character  and  in 
the  best  training,  ere  he  goes   out  for  a  turn.     If 
he  uses  ordinary  care  and  prudence  and  an  evil 
befalls  him  from  the  state  of   the  road  (coupled 
with  some  accidental  cause),  he   can  recover  for 
his  damages.3     In    Maine,    however,    the   judges 
seem  inclined  to  take  a  different  view  and  absolve 
the  town  from  liability  where  the  accident  would 
not    have    happened    but   for    something    going 
wrong  with  the  horse  or  carriage  ;  they  say  that 
if  they  are    satisfied  that    an  accident   happened 
from  a  defect  in  the  road  and  a  defect  in  the  har 
ness  making  it  unsafe,  —  although  the  driver  knew 
not  of  it  and  thought  all  was  right,  —  the  injured 
one  cannot  sustain  an  action  against  the  town.4 
Where  one  Moulton  "  — 

"Do  you    mean    Beecher's    quondam  friend?" 
asked  my  wife. 

1  Wharton,  §  106. 

2  Welsh  v.  Lawrence,  2  Chitty,  262 ;  Smith  v.  Smith,  2  Pick.  621. 

3  Hunt  v.  Pownal,  9  Vt.  411. 
*  Moore  v.  Abbot,  32  Me.  46. 

W.  &  R.  OF  T.—  a 


A    SLEIGH   DRIVE. 


"  Oh,  no  ;  it  was  before  the  days  of  Mrs.  Til- 
ton's  notoriety.  This  Moulton  was  driving  on  a 
bridge,  and  his  horse,  seeing  another  plunge  into 
the  water,  became  unmanageable  and  threw  the 
wagon  into  the  stream,  there  being  no  railing  ; 
the  town  had  not  to  pay  the  damages.1  And 
where  a  sleigh-bolt  broke,  and  then  the  horse 
bolted  and  injured  itself  against  a  heap  of  stones 
in  the  road,  the  judges  considered  that  the  driver 
had  not  exercised  due  care,  and  therefore  would 
have  to  settle  the  farrier's  little  bill  himself.2 
Similarly,  where  a  horse  being  instigated  thereto 
by  some  evil  spirit,  refused  to  hearken  to  the  reins 
and  so  went  over  an  unprotected  bank,  whereon, 
perchance,  the  wild  thyme  grew,  the  poor  owner 
of  the  nag  was  requested  to  show  that  the  acci 
dent  would  equally  have  occurred  if  the  horse  had 
not  been  so  uncontrollable,  before  he  could  get 
anything  out  of  the  town."  3 

A  gentle  snore  from  the  partner  of  my  joys  and 
sorrows  told  me  that  I  was  wasting  my  eloquence 
and  learning  on  the  midnight  air,  so  I  forbore, 
and  shortly  after  we  reached  our  home  safe  and 
sound. 

1  Moulton  v.  Sanford,  51  Me.  127  ;  Horton  v.  Taunton,  97  Mass.  266,  n. 

2  Davis  v.  Dudley,  4  Allen,  557. 

3  Titus  v.  Northbridge,  97  Mass.  25S. 


INSURANCE.  35 


CHAPTER  III. 

INSURANCE. 

What's  an  Accident  ?  —  Major  Vis.  —  Exposure  and  Death.  —  Wholly 
disabled. —  What  can  be  recovered. —  Heavy  Weights. —  Stumbling. 
—  Pitchforked.  — Change  of  Business. —  Lost  beneath  the  Dancing 
Waves.  —  A  Man  not  a  Private  Conveyance.  —  Carelessness. 

SHORTLY  after  the  events  related  in  my  last 
chapter,  I  expected  business  to  call  me  away  from 
home.  Accidents  by  rail  —  explosions,  collisions, 
over-turnings,  exploits  of  the  fire-fiend  —  had  be 
come  so  much  the  reverse  of  angel's  visits,  that 
though  some  said  I  had  the  hanging  mark  upon 
me,  I  determined  to  make  assurance  doubly  sure 
and  take  a  bond  of  fate  in  the  shape  of  an  "  acci 
dent  ticket ;  "  not  that  hope  told  a  flattering  tale, 
or  that  vain  expectations  of  making  anything  by 
the  transaction  filled  my  soul,  but  as  a  preventive 
rather  than  a  cure,  for  accidents  seldom  happen 
when  one  is  prepared,  as  showers  seldom  descend 
when  one  is  armed  cap-a-pie  with  umbrella  and 
thick  boots. 

Ere  spending  my  twenty  cents,  however,  I  de 
termined  to  find  out  what  an  accident,  within  the 
meaning  of  the  ticket,  really  might  be  ;  but  I  dis 
covered  that  no  satisfactory  definition  of  the  word 


36 


INSURANCE; 


had  ever  been  given  by  the  courts.  Cockburn, 
C.  J.,  says  that  it  means  some  violence,  casualty, 
or  vis  major  ;  and  that  disease  or  death,  generated 
by  exposure  to  heat,  cold,  damp,  the  vicissitudes  of 
climate  or  atmospheric  influences,  cannot  be  called 
accidental,  unless,  perhaps,  where  the  exposure  is 
.actually  brought  about  by  circumstances  which 
might  give  it  the  character  of  accident, — as  a 
shipwrecked  mariner  dying  from  exposure  to  cold 
and  wet  in  a  small  boat  upon  the  roaring,  raaino- 

J-  O 7  O         ^ 

ocean.1  This  decision  settled  that  I  could  recover 
nothing  if  my  nose  or  my  toes  were  frozen  off ; 
nor  if  my  early  demise  was  brought  about  by 
croup,  measles, 'or  small-pox,  caught  in  the  cars, 
could  my  family  recover  any  remuneration  for  the 
loss  of  the  house-band.  If,  like  the  good  Samari 
tan's  friend,  I  should  chance  to  fall  among  thieves, 
who  should  strip  me  of  my  raiment,  wound  me, 
and  depart  leaving  me  dead,  that,  probably,  would 
be  considered  a  death  by  violent  and  accidental 
means,  for  Judge  Withey,  of  Michigan,  has  laid 
it  down  that  an  accident  is  any  event  which  takes 
place  without  the  foresight  or  expectation  of  the 
person  acted  upon  or  affected  by  the  event.2  In 
Maryland  it  has  been  denned  as  an  unusual  and 
unexpected  result  attending  the  performance  of  a 
usual  and  necessary  act ;  and  there  it  has  been 
decided  that  every  injury  caused  by  accident,  save 

1  Sinclair  v.  Maritime  Pass.  Ass.  Co.,  3  El.  &  E.  478. 

*  Bipley  v.  Rw.  Pass.  Asa.  Co.,  2  Bigelow,  Ins.  Cases,  738. 


INSURANCE.  37 

those  specially  excepted  by  the  policy,  are  covered 
by  it.1  And  in  New  York  an  accident  is  said  to 
be  something  which  takes  place  without  any  in 
telligent  or  apparent  cause,  without  design  and 
out  of  course.2 

I  was  pleased  to  find  that  I  might  recover  for  a 
"  railway  accident,"  if  anything  happened  to  me 
while  travelling  by  the  cars,  although  nothing 
happened  to  the  train,  for  instance,  if  while  getting 
out,  after  the  cars  had  stopped,  I  should  slip,  fall, 
and  injure  myself,  not  through  any  negligence  of 
my  own,  but  because  the  steps  were  slippery;3  and 
that  any  money  to  which  I  might  become  entitled 
under  the  policy  would  not  in  any  way  lessen  the 
damages  which  I  might  claim  against  the  carrier 
for  any  injuries  received  to  my  corpus.4  This  is 
only  fair,  as  one  pays  premiums  to  insure  himself 
on  the  understanding  that  his  right  to  be  compen 
sated  when  he  is  injured  is  an  equivalent  for  the 
premium  paid.  It  is  a  quid  pro  quo  ;  larger  if  he 
gets  it,  on  the  chance  that  he  may  never  get  it  at 
all.5  Where  compensation  to  the  insured  is  granted 
"  in  case  of  bodily  injury  of  so  serious  a  nature  as 
wholly  to  disable  the  assured  from  following  his 
usual  business,  occupation,  or  pursuits,"  I  would 
be  entitled  to  pay  if  so  disabled  that  I  could  not 

1  Prov.  Life  Ins.  &  Inv.  Co.  v.  Martin,  32  Maryland,  310. 

2  Mallory  v.  Travellers  Ins.  Co.,  47  N.  Y.  52. 

3  Theobald  v.  llw.  Pass.  Ass.  Co.,  10  Ex.  45. 

*  Bradburn  v.  Gt.  W.  R.,  L.  II.,  10  Ex.  3, 11  Eng.  Rep.  330. 
e  Dolby  f.  Indian  &  L.  Life  Ass.  Co.,  15  C.  B.  365. 


00  INSURANCE. 

get  to  my  office  to  work,  although  I  were  well 
enough  to  transact  business  in  my  own  bedroom, 
or  clad  in  a  role  de  nuit  instead  of  a  professional 
toga.1  For  total  disability  from  the  prosecution  of 
one's  usual  employment  means  inability  to  follow 
one's  usual  occupation,  business,  or  pursuits  in  the 
usual  way  :  2  i.  e.,  e.  g.,  a  farmer  who  can  do  noth 
ing  but  milk,  and  a  merchant  who  can  only  keep 
his  books,  are  totally  disabled  within  the  meaning 
of  such  a  provision  as  the  above.3  To  be  wholly 
or  quite  disabled  is  to  be  unable  to  do  what  one  is 
called  upon  to  do  in  the  ordinary  course  of  busi 
ness,  and  this  is  by  no  means  the  same  thing  as 
being  "  unable  to  do  any  part  of  one's  business."  4 

The  decided  cases  made  it  clear  that  I  could 
recover  only  for  the  personal  expense  and  pain 
occasioned  by  the  accident,  and  not  damage  for 
loss  of  time  or  of  profit  occasioned  thereby  ;  and 
also,  that  if  I  insured  my  life  for  only  $1000,  it 
could  not  be  assumed  that  my  life  was  worth  only 
that  and  nothing  more,  and  an  injury  sustained 
estimated  at  a  proportionate  sum.5 

I  also,  as  a  result  of  my  researches,  learned  the 
following :  If  a  policy  provided  that  the  company 
would  be  responsible  for  accidents  operating  from 
external  causes,  I  would  get  something  if  I  injured 

1  Hooper    v.  Accidental  Death  Ass.  Co.,  5  H.  &  N.  546;   affirmed  on  ap 
peal,  5  II.  &  N.  557. 

2  May  on  Insurance,  p.  644. 

s  Sawyer  v.  United  States  Casualty  Co.,  8  Law  Reg.  (N.  S.),  233. 

*  Per  Wilde,  B.,  Hooper  v.  Accidental  Death  Ins.  Co.,  5  II.  &  N.  546. 

•  Theobald  v.  Rw.  Travellers  Ins.  Co.,  10  Ex.  45. 


INSURANCE. 


39 


my  spinal  marrow  by  lifting  my  trunk ; l  but  it 
would  appear  that  rupture  caused  by  jumping 
from  the  cars  while  in  motion  and  afterwards  run 
ning  to  accomplish  certain  business,  done  volun 
tarily  and  in  the  ordinary  way,  and  without  any 
necessity  therefor,  and  with  no  unforeseen  or  in 
voluntary  movement  of  the  body,  such  as  stum 
bling,  or  slipping,  or  falling,  is  not  caused  by 
violent  or  accidental  means.  Though  it  might  be 
otherwise  if  in  jumping  I  should  lose  my  balance 
and  fall,  or  strike  some  unseen  object,  or  in  run 
ning  should  stumble  or  slip.2  If,  while  on  my 
travels,  I  should  take  to  amateur  farming  (not  the 
most  likely  thing  in  the  world,  bucolic  desires  not 
filling  my  soul,  and  the  thermometer  being  down 
below  nothing),  and  while  pitching  hay  let  the 
handle  of  the  pitchfork  slip  and  pitch  into  my 
bowels,  producing  thereby  peritoneal  inflamma 
tion,  whereof  I  should  die,  that  would  be  an  acci 
dental  death  ! 3  Nor  would  the  casual  change  of 
occupation  from  the  pursuits  of  the  forum  to  that 
of  the  field,  forfeit  my  right  to  recover.4  Where 
an  accident  produced  hernia,  which  caused  death, 
it  was  held  that  the  death  was  not  within  the  ex 
ception  of  the  policy  which  provided  that  the  com 
pany  did  not  insure  against  death  or  disability 

1  Martin  v.  Travellers  Ins.  Co.,  1  F.  &  F.  505. 

2  Southard  v.  Rw.  Pass.  Ass.  Co.,  34  Conn.  574. 

s  N.  Am.  L.  &  A.  Ins.  Co.  v.  Burroughs,  69  Penn.  St.  43. 

*  Admins,  of  Stone  «.  U.  S.  Casualty  Co.,  34  N.  J.  371  ;  N.  Am.  L.  &  A. 
Ins.  Co.  v.  Burroughs,  supra;  Provident  Life  Ins.  Co.  v.  Fennel,  49  111.  180  ; 
Prov.  Life  Ins.  &  Inv.  Co.  v.  Martin,  32  Md.  310. 


40  INSURANCE. 

arising  from  rheumatism,  gout,  hernia,  etc.1  If  I 
should  go  in  bathing  and  die  from  the  action  of  the 
water  causing  asphyxia,  that,  too,  would  be  a 
death  by  external  violence  within  the  meaning  of 
the  policy,  whether  I  swam  out  too  far,  struck  my 
head  against  a  rock  in  diving,  or  —  unskilled  in 
the  natatorial  art  —  got  out  of  my  depth  ;  but  if 
I  succumbed  to  an  attack  of  apoplexy  while  taking 
the  bath,  that  would  not  be  a  death  from  acci 
dent.2  A  provision  that  no  claim  is  to  be  made 
under  a  policy,  except  in  respect  of  an  injury 
caused  by  some  "•  outward  and  visible  means,"  ap 
plies  only  to  non-fatal  injuries.3 

I  found  also,  that  it  was  legally  correct  —  how 
ever  paradoxical  it  may  appear  —  to  say  that  I  was 
travelling  in  a  carriage,  when  in  fact  I  was  actuallv 
alighting  therefrom  ;  4  and  that  I  would  be  "  trav 
elling  in  a  carriage  provided  for  the  transportation 
of  passengers,"  if,  while  in  the  prosecution  of  my 
journey,  I  walked  on  foot,  as  passengers  are  wont 
to  do  from  one  station  to  another.  The  courts, 
ever  ready  to  interpret  a  policy  in  the  way  most 
advantageous  to  the  insured,5  will  not  allow  "  trav 
elling  in  a  public  conveyance "  to  be  construed 
literally,  and  if  tin  accident  happens  while  one  is 

1  Fitton  v   Ace.  Death  Ins.  Co.,  17  C.  B.  (N.  S.),  122  ;  but  sec  Smith  v.  Ace. 
Ins.  Co.,  L.  II.,  5  Ex.  302,  a  case  of  erysipelas. 

2  Trew  v.  Hallway  Pass.  Ass.  Co.,  5  H.  &  N.  211,  affirmed  on  appeal,  6 
II.  &  N.  839. 

8  Mallory  v.  Traveller'*  Ins.  Co.,  Ct.  of  Appeals,  47  N.  Y.  52. 

4  Theobald  v.  R\v.  Pass.  Ass.  Co.,  10  Ex.  44. 

5  Hooper  v.  Accid.  Death  Ins.  Co.,  5  II.  &  N.  545  ;  6  Ib.  839  ;  Smith  v.  Ace. 
Iiis.  Co.,  per  Kelly,  C.  B.,  supra. 


INSURANCE.  41 

getting  off  or  on  a  train,  or  attempting  to  do  so 
for  any  reasonable  purpose,  it  comes  within  the 
terms  of  a  policy  insuring  against  accidents  while 
travelling  by  public  conveyance.1  Mr.  John 
Wilder  May  (who  has  written  a  large  book  on 
Insurance)  thinks  that,  perhaps,  in  a  reasonable 
and  substantially  accurate  sense  a  man  may  be 
said  to  be  travelling  by  public  conveyance,  when 
he  is  prosecuting  a  journey  by  rail  or  boat,  whether 
he  is  sitting  still  in  a  motionless  car,  or  standing 
serenely  on  the  station-platform,  or  walking  to 
and  fro  thereon  waiting  for  a  start,  or  going  into 
a  station  for  prog,  or  returning  therefrom  after 
•having  grubbed;2  although  Chase,  C.  J.,  held  that 
a  man  who  had  performed  the  greater  part  of  a 
journey  by  steamboat  and,  there  being  no  public 
conveyance,  proceeded  on  foot  to  his  house  some 
miles  distant  from  the  port,  could  not  exactly  be 
said  to  be  a  private  conveyance  to  himself  while 
walking.3  An  elephant  may  be  a  traveller.4 

A  poor  fellow  away  down  in  Kentucky  inadver 
tently  and  needlessly  put  his  arm  out  of  a  car 
window  and  had  it  injured  by  being  bumped 
against  a  post,  and  the  court  held  the  injury  not 
accidental,  being  attributable  to  the  person's  own 
negligence.5  But  as  this  case  stands  alone,  it  will 

1  Tooley  v.  R\v.  Pass.  Ace.  Ins.  Co.,  2  Ins.  L.  J.  275. 

2  May  on  Insurance,  p.  661 

3  Ripley  r.  Ins.  Co.,  16  Wall.  (U.  S.),  336. 

4  Gregory  v.  Adams,  14  Gray,  242. 

s  Morel  v  Mississippi  Valley  Life  Ins.  Co.,  4  Bush  (Ky.),  535. 


42  INSURANCE. 

scarcely  answer  to  point  a  moral  or  adorn  a  tale, 
and  the  better  opinion  seems  to  be  that  contribu 
tory  negligence  is  no  defence,  as  the  liability  rests 
upon  contract,  one  of  the  chief  objects  of  which  is 
to  protect  a  man  against  his  own  carelessness  or 
negligence.1  But  one  must  not  be  guilty  of  willful 
and  wanton  exposure  of  himself  to  unnecessary 
danger ;  for  instance  he  must  not  ride  on  the  en 
gine,  2  or  attempt  to  cross  the  track  when  an  ap- 
approaching  train  is  within  fifty  feet.3 

I  was  now  assured  that  to  be  insured  was  sure 
to  bring  contentment,  if  not  riches. 

1  Prov.  Life  Ins.  &  Inv.  Co.  v.  Martin,  32  Md.  310  ;  Trcw  v.  Rw.  Pas^.  Ass. 
Co.,  6  II.  &  N.  839 ;  Schneider  r.  Provident  Life  Ins.  Co.,  24  Wis.  28 ;  Cham- 
plin  v.  Rw.  Pass.  Ass.  Co.,  6  Lansing  (N.  Y.),  71. 

2  Brown  «.  Rw.  Pass  Ass.  Co.,  45  Mo.  221 ;  May,  p.  657. 

3  May  on  Insurance,  p.  667. 


EVERYTHING    MUST    BE    SOUND,    ETC.  43 


CHAPTER  IV. 

EVERYTHING  MUST  BE  SOUND,  AND  EVERY  ONE 
CAREFUL. 

The  Reason  why.  —Literature  of  Stages.  —  Off  on  Wheels.  —  Sound 
ness  warranted.  —  Seats  taken.  —  Fare  paid,  either  First  or  Last.  — 
Damage  to  Trunks.  —  Involuntary  Aeronautics.  —  Passengers  in 
jured. —  Negligence  of  Passengers,  or  of  Drivers.  —  Carriers  liable 
for  Smallest  Fault;  Not  Insurers.  —  Genuine  Accidents. —  Horses 
left  standing.  —  Driving  and  upsetting  a  Friend.  —  Non-repair  of 
Roads.—  Care  required.  —  Tennysonian  Stanzas.  —  Pleasures  of  the 
Weed  and  Rural  Life. 

THE  long  vacation  was  rapidly  approaching,  — 
that  season  when  the  heat  having  lengthened  out 
the  days  (as  it  does  everything  else),  the  members 
of  the  legal  profession  abandon  rejoinders  and  de 
murrers,  cast  briefs  and  records,  with  physic,  to 
the  dogs,  and,  satisfied  with  bills  and  conveyances, 
wander  off  in  search  of  change  in  cooling  streams 
and  pastures  green.  In  my  modest  household  was 
eagerly  discussed  the  question,  "  Whither  shall  we 
flee  ?  " 

My  wife's  step-mother's  brother's  wife's  moth 
er's  aunt,  had  recently  met  with  a  horrible  and 
excruciating  death  upon  a  railway  car,  so  my  wife 
had  solemnly  vowed  never  again  to  commit  herself 
to  the  safe-keeping  of  a  railway  company  ;  this, 


44  EVERYTHING    MUST    BE    SOUND, 

therefore,  shut  us  off  from  the  usual  means  of  exit 
from  our  inland  city,  and  yet  as  "  Exeunt  omnes" 
was  the  cry,  we  could  not  surely  stay  at  home ;  if 
we  did,  we  would  have  to  lie  low  in  the  kitchen 
and  back  premises,  that  we  might  appear  to  others 
to  be  away.  At  last  I  found  that  there  was  still 
a  tumble-down  old  stage-coach  making,  with  the 
assistance  of  two  skeleton  horses,  tri-weekly  trips 
to  and  from  the  little  Village  of  Ayr,  where  we 
could  catch  a  steamboat  and  thus  do  in  proper 
style  the  Lakes  and  the  St.  Lawrence,  the  Ottawa 
and  the  far-famed  Saguenay. 

When  this  discovery  of  mine  was  divulged  at 
home,  great  was  the  rejoicing,  loud  paeans  rose, 
and  for  days  I  was  deluged  with  quotations  from 
all  the  novelists,  from  old  Fielding  to  poor  Dick-' 
ens  anent  stages,  and  coaches,  and  stage-coaches. 
I  was  told  of  all  the  heroes  of  romance,  from  Tom 
Brown  back  to  Tom  Jones,  who  had  journeyed 
thereby  ;  I  was  confidently  informed,  on  the  au 
thority  of  Mr.  William  Makepeace  Thackeray, 
.that  in  every  coach  there  is  sure  to  be  found  an 
asthmatic  old  gentleman,  a  fat  man,  swelling  pre- 
ternaturally  with  great  coats  and  snoring  inde 
cently,  and  a  lone  widow  who  insists  upon  all  the 
windows  being  shut,  and  fills  the  vehicle  with  the 
fumes  of  rum  which  she  sucks  perpetually  from 
a  black  bottle.  Mr.  Thomas  Hughes  was  quoted 
to  prove  how  much  more  punctual  stages  are  than 
railway  trains,  for  he  tells  of  one  that  went  u  ten 


AND    EVERY    ONE    CAREFUL. 

miles  an  hour,  including  stoppages,  and  so  punc 
tual  that  all  the  road  set  their  watches  by  her.' 
The  old  joke  concerning  the  young  man  who,  on 
being  asked  if  he  had  ever  been  through  Euclid, 
replied,  «  Yes,  I  have  driven  through  it  on  a 
stage-coach,"  was  given  to  me  once  again  as  if 
uttered  for  the  first  time  ;  and  I  was  informed 
that  an  Indian  squaw,  the  first  time  she  saw  a 
coach  pass  at  a  spanking  trot,  and  watched  the 
wheels  revolving  rapidly,  clapped  her  hands  in 
delight,  exclaiming,  »  Run,  little  one,  run !  or  the 
big  one  will  catch  you  !  "  The  subject  gradually 
became  monotonous. 

At  length,  however,  the  day  of  our  departure 

dawned. 

When  the  coach  drove  up  to  the  door,  at  sight 
of  the  dusty  tumble-down  conveyance,  my  wife- 
true  to  her  woman's  nature  —  was  half  inclined 
to  decline  to  trust  her  precious  self  therein,  but 
as  I  had  paid  our  fares  when  booking  our  places 
—  the  driver  having  asked  for  the  money,  as  he 
had  a  perfect  right  to  do1  — and  as  I  assured  her 
every  stage-coach  proprietor  warrants  that  his 
stage  is  sufficiently  secure  to  perform  the  journey 
proposed,  and  is  bound  to  examine  his  vehicles 
every  day,  and  if  he  does  not  is  responsible  for 
accidents,2  she  consented  to  start;  although 
could  see  from  her  expression  of  countenance  that 

1  Chitty  on  Contracts,  292. 

2  Bremner  v.  Williams,  1  C.  &  P.  414  ;  Sharp  t».  Grey,  9  Bmg.  457. 


46  EVERYTHING   MUST    BE    SOUND, 

the  ideal  coach  which  she  had  been  fondly  cher 
ishing  was  very  different  to  the  one  into  which  we 
entered.  Our  luggage  was  mounted  on  top,  and 
soon  we  were  rumbling  clown  the  street  to  pick 
up  other  passengers,  as  we  were  numbers  one  and 
two.  A  sudden  stop  to  mend  some  broken  har 
ness  called  forth  an  exclamation  of  disgust  from 
the  fair  being  beside  me,  and  a  remark  from  my 
self  to  the  effect  that  she  need  not  be  anxious,  as 
the  owner  was  responsible  that  all  the  equipments 
of  the  conveyance,  drivers,  horses,  harness,  were 
fit  and  suitable.1 

In  a  few  minutes  we  drew  up  at  the  door  of  a 
large  mansion  from  which  quickly  emerged  four 
old  maids ;  they  drew  back  in  horror  when  they 
saw  my  pantaloons,  one  exclaiming  :  — 

"  Driver,  we  engaged  the  whole  inside  of  the 
coach,  and  there  's  a  man  in  it." 

"  Yes,  mum,"  said  John,  "but  one  of  you  can 
sit  outside  along  of  me  for  a  bit ;  the  gentleman 
is  not  going  far." 

"  You  have  no  right  to  separate  us 2  or  let 
other  persons  get  inside,"  replied  number  one, 
waxing  wrathy. 

"  No,  indeed,"   chorused  the  others. 

"Ladies,"  I  said,  "I  will  be  most  happy  to 
give  up  my  place  and  ride  outside  ;  the  driver 
should  have  told  me  that  the  inside  had  been  en- 

1  Crofts  v.  Water-house,  3  Bing.  321 ;  Jones  v.  Boyce,  1  Stark.  493 ;  Stokes 
v.  Saltonstall,  13  Peters,  181 ;  Ingalls  v.  Bills,  9  Met.  1. 

2  Long  v.  Home,  1C.  &  P.  611. 


AND    EVERY    ONE    CAREFUL.  47 

gaged,  and  then  my  wife  and  myself  would  have 
waited  until  some  other  day." 

"  Well,"  quoth  the  driver,  "  the  ladies  had  not 
paid  for  the  seats,  and  we  were  not  bound  to  keep 
them  for  them."  : 

With  withering  sarcasm  the  eldest  maid  replied, 
"  Here  is  your  money,  sir." 

If  a  look  could  have  annihilated  a  coachee,  never 
again  would  that  man  have  mounted  a  box,  or 
handled  the  ribbons,  after  the  Medusa  glance  he 
then  received.  I  emerged  from  the  inside,  into 
which  the  ladies  stowed  themselves  and  several 
parcels,  packages  and  bandboxes,  while  several 
boxes  of  larger  growth,  containing  their  staple 
goods,  were  hoisted  up  aloft.  After  picking  up  a 
man  we  rattled  off  down  the  street  into  the  open 
country. 

The  last  comer  had  not  as  yet  paid  his  fare, 
and  at  the  first  stopping-place-  he  was  asked  for 
it ;  but  he  demurred,  saying  that  as  he  had  not 
prepaid  the  fare,  it  was  not  due  until  the  whole 
journey  was  completed. 

"  You  will  have  to  leave  the  stage  then,"  said 
the  collector. 

"  I  '11  do  nothing  of  the  kind,"  returned  the 
other,  "  and  if  you  force  me  off  it  will  be  at  your 
peril,  for  your  driver  permitting  me  to  commence 
the  journey  without  prepayment  is  an  acquies 
cence  in  my  riding  to  the  end  before  paying  up, 

1  Ker  v.  Mountain,  1  Esp.  27. 


48  EVERYTHING   MUST    BE    SOUND, 

so  you  may  howl  and  swear  as  much  as  you 
like."1 

At  this  the  man  of  fares  subsided,  and  we  re 
sumed  our  slow  jog-trot  without  any  diminution 
of  numbers.  The  jolting  of  our  vehicle  soon 
caused  one  of  the  trunks  belonging  to  one  or 
other  of  the  four  sisters  to  gape  and  yawn  in  a 
manner  which  exposed  the  contents  thereof  in  a 
way  which  would  doubtless  have  caused  the  fail- 
owner  to  blush  to  the  roots  of  her  hair  (if  it  was 
her  own  she  wore),  and  it  appearing  probable  that 
articles  of  feminine  apparel  would  soon  be  scat 
tering  themselves  over  the  dusty  road,  and  know 
ing  that  the  box  not  having  been  securely  and 
properly  packed  and  fastened,  the  carrier  would 
not  be  liable  for  any  loss  or  damage  happening 
to  it,2  I  persuaded  the  driver  to  stop  until  the 
mischief  could  be  remedied ;  for  such  an  in 
jury  would  vex  a  saint,  much  more  a  shrew  of 
her  impatient  humor.  With  much  grumbling  he 
consented,  and  all  was  soon  made  taut  and 
right. 

To  make  up  for  lost  time,  we  now  rushed  ahead 
at  a  terrific  pace,  considering  the  clumsy,  cum 
brous,  jingling,  jerking  concern  in  which  we  were 
travelling.  The  ladies  within  (who  were  crushing 
their  bonnets,  elbowing  each  other  under  the  fifth 
rib,  jumping  up  and  bouncing  into  one  another's 

1  llowland  v.  Brig  Lavinia,  1  Peters  Adm.  126 ;  Detouches  v.  Peck,  9  John 
son,  210. 

2  Walker  v.  Jackson,  10  M.  &  W.  161. 


AND    EVERY    ONE    CAREFUL.  49 

laps  with  every  plunge  of  the  coach),  cried  one 
and  all :  — 

"  Oh,  do  be  careful  —  don't  go  so  fast."  And 
I,  in  admonitory  tones,  told  the  driver  that  we 
would  hold  him  liable  for  any  injuries  that  might 
happen  to  either  ourselves  or  our  baggage,  in  con 
sequence  of  his  racing  in  such  an  improper  man 
ner.1 

"All  right,"  said  he,  "I  'm  responsible,  and  I 
am  master  too,  here  ;  so  I'll  do  .just  what  I  like." 

Scarce  had  he  uttered  these  words  when  we 
drew  near  a  large  spreading  tree,  standing  in  the 
middle  of  the  road.  At  a  glance  I  saw  that  the 
coach  must  pass  under  the  outstretched  branches, 
and  that  they  were  so  low  that  they  would  as 
suredly  sweep  the  top  of  the  stage  clear  of  lug 
gage  and  whatsoever  else  was  thereupon,  and  un 
fortunately  I  myself  was  thereupon.  I  had  no 
choice  left  but  to  jump  off  or  remain  in  certain 
peril ;  mindful  of  my  early  performances  in  the 
gymnasium,  of  the  two  threatening  evils  I  chose 
what  appeared  the  lesser,  and  as  the  foremost 
twigs  took  off  the  hat  of  the  driver  (who  was  con 
siderably  below  where  I  was  perched),  I  sprang 
to  the  ground,  and,  as  if  in  rage  at  my  escape,  the 
giant  forest  tree  hurled  two  or  three  trunks  after 
me ;  one  came  with  a  thud  upon  my  foot  and 
bruised  it  rather  badly. 

Of  course  the  ladies  screamed  loudly  as  they 

1  Mayor  v.  Humphries,  1  C.  &  P.  251 ;  Gough  v.  Bryan,  5  Dowl.  765. 
W.  &R.  OFT.— 4 


50  EVERYTHING    MUST    BE    SOUND, 

saw  me  flying  in  a  graceful  parabolic  curve 
through  the  azure  air.  The  driver  as  rapidly  as 
possible  pulled  up  his  old  horses.  Some  loud  con 
versation  took  place  between  myself  and  the  man, 
interspersed  with  ejaculations  more  vigorous  than 
religious,  he  contending  that  I  had  only  myself 
to  thank  for  my  injuries,  as  if  I  had  bent  low 
enough  I  would  not  have  been  touched  by  the 
tree. 

"  All  very  well,"  I  replied,  "  if  I  had  been  the 
size  of  the  little  husband  no  bigger  than  a  thumb 
what  was  put  into  a  quart  pot  and  made  to  beat  a 
drum,  but  Mr.  Thomas  Thumb  himself,  if  he  had 
been  on  top,  could  not  have  escaped  from  that 
tree.  However,  your  master  is  liable  to  me  for 
the  injuries  I  have  received."1 

"  No,  he  is  n't,"  surlily  replied  the  Jehu,  "  be 
cause  I  say  if  you  had  staid  quiet  you  would  not 
have  been  hurt." 

"  Even  if  that  were  so,  it  would  make  no  differ 
ence,  as  I  entertained  a  well-founded  apprehension 
of  being  decapitated  by  that  ugly  branch." 

I  argued  not,  however,  with  the  man,  but  limp 
ing  back  to  the  coach,  remounted  to  my  elevated 
seat,  accompanied  by  the  prayers  and  entreaties 
of  my  wife,  not  to  blight  her  young  life  by  expos 
ing  myself  to  any  more  such  frightful  risks  out 
side,  but  to  come  within  where  she  was  sure  there 

1  Ingalls  v.  Bills,  9  Met.  1 ;  Stokes  v.  Saltonstall,  13  Pet.  (U.  S.)  181 ;  Frink 
».  Potter,  17  111.  406. 

2  Jones  v.  Boj-ce,  1  Stark.  493. 


AND    EVERY    ONE    CAREFUL.  51 

was  plenty  of  room ;  but  I  preferred  the  fresh  air 
and  fine  view  aloft  to  the  close  musty  smell  and 
narrow  field  of  vision  down  below. 

When  again  under  way,  my  fellow-passenger, 
who  by  sitting  on  the  box  with  the  driver  had 
avoided  the  collision,  began  to  tell  me  of  his 
grandmother,  one  Mistress  Elizabeth  Dudley,  who 
on  one  occasion  was  an  outside  passenger  to  the 
Cross  Keys,  Chelsea.  When  in  front  of  the  gate 
way  leading  to  the  stable-yard  of  that  inn,  the 
coachman  requested  the  travellers  to  alight,  as  the 
passage  into  the  yard  was  awkward.  As  Mrs. 
Dudley  did  not  wish  to  soil  her  pumps  in  the 
dirty  road,  she  said  she  would  rather  be  driven 
into  the  yard.  Coachee  told  her  to  stoop,  and 
then  lashed  up  his  horses.  The  coach  was  8  feet 
9  in.  high,  and  the  archway  only  9  feet  9  in.,  and 
Betsy,  not  being  able  to  squeeze  herself  into  the 
interstice  of  twelve  inches,  received  a  severe  in 
jury  by  having  her  back  and  shoulders  knocked 
against  the  archway ;  she  recovered,  however, 
with  £100  damages.1 

I  said  :  "  Of  course,  to  excuse  the  driver  from 
responsibility,  it  must  always  be  shown  that  the 
plaintiff  was  guilty  of  negligence  which  contrib 
uted  directly  to  the  injury.2  I  remember  one 
case  where  a  man  was  asked  by  the  driver  to  ride 
inside  a  coach,  and  told  that  if  he  remained  out- 


1  Dudley  v.  Smith,  1  Camp.  167. 

«  Colegrove  v.  N.  Y.  &  Harlem,  etc.,  R.  R.  Co.,  6  Duer,  382. 


52  EVERYTHING    MUST    BE    SOUND, 

side  it  would  be  at  his  own  risk  ;  he  treated  both 
the  request  and  the  hint  with  silent  contempt, 
and  being  injured  by  the  overturning  of  the  car 
riage,  sued  the  owners  and  got  damages,  as  it  ap 
peared  that  the  accident  occurred  from  the  negli 
gence  of  the  driver,  and  that  the  position  of  the 
obstreperous  man  in  no  way  contributed  to  it."  * 

"  It  is  clearly  settled,"  returned  my  new  made 
acquaintance,  "  that  a  driver,  or  his  master,  al 
though  he  does  not  warrant  the  absolute  safety  of 
his  passengers  is,  nevertheless,  answerable  for  the 
smallest  negligence  ; 2  and  that  the  proprietor  is 
also  responsible  for  all  defects  in  the  coach,  even 
though  they  be  out  of  sight  and  not  discoverable 
upon  an  ordinary  examination,  as  a  sharp  fellow 
once  proved."  3 

"  An  American,  however,  in  gall  and  bitterness 
was  told  by  a  court,  that  carriers,  although  bound 
to  use  the  utmost  care  and  diligence  to  prevent 
those  injuries  which  human  care  and  foresight  can 
guard  against,  still  are  not  liable  for  injuries  hap 
pening  through  hidden  defects  which  could  not 
from  the  most  careful  and  thorough  examination 
be  discovered."  4 

"  Yes,"  interrupted  my  friend,  "  but  in  the 
State  of  Illinois,  a  Potter,  who  owned  a  stage- 

1  Keith  v.  Pinkham,  43  Maine,  501 ;  Lackawana  &  B.  R.  R.  Co.  v.  Chene- 
wirth,  52  Fenn.  St.  382. 

2  Harris  v .  Costar,  1  C.  &  P.  636  ;  Christie  v.  Griggs,  2  Camp.  79. 
s  Sharp  v.  Grey,  9  Bing.  457. 

4  Ingalls  v.  Bills,  9  Met.  1. 


AND    EVERY    ONE    CAREFUL.  53 

coach,  was  held  liable  for  an  injury  to  a  passen 
ger,  which  resulted  from  the  breaking  of  an  axle- 
tree,  through  the  effect  of  frost."  1 

"  Long  ago  the  courts  in  England  held  that  a 
man  established  a  primd  facie  case  by  proving  his 
taking  passage  in  a  coach,  his  coming  to  grief 
while  in  it,  and  the  injury  he  sustained  ;  and 
then  that  the  proprietor  must  show,  if  he  could, 
that  his  vehicle  was  as  good  as  a  vehicle  could  be, 
and  that  the  driver  was  as  skillful  a  handler  of 
the  reins  as  could  be  found."  2 

"  Yes,  as  Best,  C.  J.,  once  said,  a  coachman 
must  have  competent  skill  and  must  use  that  skill 
with  discretion  ;  he  must  be  well  acquainted  with 
the  road  he  undertakes  to  drive  ;  he  must  be  pro 
vided  with  steady  horses,  a  coach  and  harness  of 
sufficient  strength  and  properly  made,  and  also 
with  lights  by  night.  If  there  be  the  least  failure 
in  any  one  of  these  things,  the  duty  of  the  propri 
etor  is  not  fulfilled,  and  he  is  answerable  for  any 
injury  or  damage  that  happens.3  He  also  is  so  un 
less  the  driver  exercised  a  sound  discretion  at  the 
time  of  the  accident.  If  he  could  have  exercised  a 
sounder  judgment  or  better  discretion  than  he  did, 
as  by  driving  slower  or  faster,  or  by  telling  his 
passengers  to  dismount  at  a  dangerous  or  difficult 
place,  the  owner  must  make  compensation."  4 

1  Frink  v.  Potter,  17  111.  406. 

2  Christie  v.  Griggs,  2  Camp.  79. 

»  Crofts  v.  Waterhouse,  3  Bing.  319  ;  Farish  v.  Reigle,  11  Gratt.  697. 
4  Stanton  v.  Weller,  ffil.  Term,  6  Viet.  U.  C. 


54  EVERYTHING   MUST   BE    SOUND, 

"  Fortunately,  however,  for  the  pockets  of  car 
riers,  they  are  not  considered  as  actual  insurers  of 
the  safety  of  those  who  intrust  their  precious  bodies 
to  them.  Accidents  will  happen  in  the  best  regu 
lated  concerns,  and  it  appears  to  be  settled  that 
when  they  do  occur  where  there  is  no  negligence 
or  default,  the  law  will  protect  carriers  from  the 
demands  of  injured  ones."  J 

"  Oh,  yes,  that  is  a  well-established  doctrine, 
and  many  cases  might  be  quoted  to  sustain  it. 
Where,  for  instance,  on  a  dark  night  the  lights 
were  obscured  by  a  fog,  or  the  coachman  without 
any  fault  of  his  gets  off  the  road."  2 

"And  also,"  I  chimed  in,  "where  extreme  cold 
prevented  the  driver  doing  his  duty ;  3  and  where 
the  reflection  of  the  sun  upon  falling  water  fright 
ened  the  horses  so  that  they  ran  away  and  knocked 
things  into  pie ;  4  and  where  an  axle-tree  that  was 
sound  and  perfect  snapped  asunder.5  And  where 
a  sleigh  or  a  carriage  upsets  through  mere  accident 
and  without  culpable  neglect  on  the  part  of  the 
driver  —  as  where  he  had  been  driving  along  a 
track  in  a  ditch  to  take  advantage  of  the  small 
modicum  of  snow  remaining  and  in  turning  on  to 
the  road  again  got  into  a  hidden  hole  and  upset  — 
and  the  horses  escape  from  the  hands  of  the  Jehu, 

1  Aston  v.  Heaven,  2  Esp.  533. 

2  Crofts  v.  Waterhouse,  3  Bing.  321. 

3  Stokes  v.  Saltonstall,  13  Peters,  181. 

4  Aston  v.  Heaven,  supra. 

6  Parker  v.  Flagg,  26  Me.  181  ;   Add.  on  Contracts,  495. 


AND    EVERY    ONE    CAREFUL.  5.5 

and  ran  away  and  do  mischief  to  the  person  or 
property  of  other  people;  though  undoubtedly  the 
owner  would  be  liable  where  there  was  clear  neg 
ligence  on  the  part  of  himself  or  driver  which  led 
to  the  carriage  being  overturned  and  the  escape  of 
his  horses.1  If  a  man  has  carelessly  left  his  horses 
standing  on  the  highway,  while  he  is  drinking  or 
loafing  in  a  tavern,  and  the  horses  run  away  and 
commit  an  injury,  the  right  to  recover  damages  is 
clear.2  Even  if  a  third  party  causes  the  stampede 
of  the  horses  which  are  left  standing  alone,  the 
owner  will  be  liable  for  all  damage  done;3  and  it 
will  be  inferred  that  a  horse  was  negligently  fast 
ened  if  it  gets  loose  and  runs  away.4  But  where 
a  pony  and  chaise  were  left  standing  in  the  street 
without  any  person  to  take  care  of  them,  and  af 
terwards  the  pony  was  seen  running  away  with 
the  chaise,  and  those  who  saw  the  runaway  did  not 
know  the  cause  of  the  starting.  The  owner  of  the 
turnout,  however,  proved  that  his  wife  was  hold 
ing  the  nag  by  the  bridle,  when  a  Punch  and  Judy 
show  coming  up  frightened  the  pony,  which  break 
ing  from  the  lady  ran  off,  and  Lord  Den  man  in 
charging  the  jury,  said  :  '  If  the  facts  are  true  as 
suggested  by  the  defense,  I  very  much  think  you 
will  be  disposed  to  consider  this  an  inevitable  ac 
cident  ;  one  which  the  defendants  could  not  pre 
vent,'"5 

i  Robinson  v.  Bletcher,  15  U.  C.  Q.  B.  Rep.  160.  2  ibid. 

s  Illidge  v.  Goodwin,  5  C.  &  P.  190;  Park  v.  O'Brien,  23  Conn.  339. 

*  Strup  v.  Edcns,  22  Wis.  432. 

c  Goodman  v.  Taylor,  5  C.  &  P.  410 ;  Kennedy  r.  Way,  Brightley  (Pa  ),  186. 


56  EVERYTHING    MUST    BE    SOUND, 

"  Of  course  if  one  gentleman  when  out  driving 
offers  another  a  seat  in  his  carriage,  he  is  not  liable 
at  all  for  an  accident  afterwards  occurring;  unless, 
indeed,  it  were  of  a  gross  description;  and,  as 
nothing  is  more  usual  than  for  accidents  to  happen 
in  driving,  without  any  want  of  care  on  the  part 
of  the  driver,  no  primd  facie  presumption  of  neg 
ligence  is  raised  when  an  accident  does  occur,  so 
the  injured  one  must  give  affirmative  evidence 
of  gross  negligence  on  the  part  of  his  oblioino- 

n      .  -.     .,  O  & 

inend. 

"  Oh,  yes  ;  that  is  well  settled  by  a  case  where 
the  Privy  Council  reversed  the  decision  of  the  Su 
preme  Court  of  Victoria.  A  gentleman  was  con 
veying  the  plaintiff,  who  was  a  decorator  and  gar 
dener  in  his  employ,  to  perform  for  him  certain 
work.  The  defendant,  the  gentleman,  drove,  and 
while  on  the  road  the  king-bolt  broke,  the  horses 
bolted,  the  carriage  was  overturned,  the  plaintiff 
thrown  out  and  stunned ;  and  when  the  man  came 
to  himself  the  horses  and  forewheels  of  the  buggy 
had  vanished.  There  being  no  evidence  of  gross 
negligence,  the  decorator  had  to  bear  his  injuries 
and  bruises  unavenged.1  One  cannot  fairly  be 
expected  to  examine  very  strictly  and  carefully 
the  state  of  the  bolts  and  fastenings  of  his  carriage 
every  time  he  goes  out  with  it."  2 

"  By  the  way,"  said  my  companion,  "  your  own 
right  to  recover  is  perfectly  clear,  for  I  am  sure 

1  Moffatt  v.  Bateman,  L.  B,.,  3  P.  C.  App.  115.  2  ibid. 


AND    EVERY    ONE    CAREFUL.  57 

that  I  have  seen  in  some  place  or  other  that  where 
a  woman  was  jolted  off  a  stage  and  had  her  leg 
fractured  by  some  luggage  that  was  thrown  on  it, 
she  was  successful  in  a  suit  against  the  owners  of 
the  vehicle."  l 

"  Thanks  for  the  information,"  I  replied,  "  I 
did  not  know  that  there  was  a  case  so  exactly  on 
all  fours  with  my  own." 

"  A  little  research  nowadays  will  enable  one  to 
find  a  decision  on  almost  every  possible  point  the 
mind  of  man  can  conceive,  so  great  is  the  number 
of  the  reports  now  accumulating  with  fearful  ra 
pidity  upon  the  shelves  of  law  libraries.  Ah  me  ! 
the  speed-  with  which  the  yearly  accretions  of  re 
ports  fill  up  every  library,  not  of  Brobdignagian 
proportions,  is  an  appalling  phenomenon.  It  makes 
me  sigh  to  consider  the  lot  of  our  grandchildren 
who  may  chance  to  commence  the  study  of  law ! 
I"- 

A  sudden  jerk  and  bump,  caused  by  a  wheel 
hitting  against  a  stump  in  the  middle  of  the  road, 
stopped  the  sentence  and  set  us  talking  about  the 
liability  of  road  companies  and  municipalities  as 
to  keeping  the  roads  in  a  proper,  safe,  and  conven 
ient  condition. 

"  Yes,"  said  my  friend,  "  towns  are  not  ab 
solved  from  their  responsibility  because  some  one 
else  is  bound  by  law  to  keep  the  road  smooth  and 
safe.2  But  of  course  the  liability  is  limited  to  in- 

1  Curtis  v.  Drinkwater,  2  B.  &  Ad.  169. 

2  Wallace  v.  New  York,  2  Hilton,  440  ;  Phillips  v.  Veazic,  40  Me.  96. 


58          EVERYTHING  MUST  BE  SOUND, 

juries  caused  by  defects  and  obstructions  for  which 
the  town  might  be  indicted,  or  which  by  law  they 
are  bound  to  remove."  1 

"  I  remember,"  I  said,  "  hearing  of  a  man  who 
lost  his  horse  in  a  deep  mud-hole  filled  with  water 
and  partly  in  the  highway,  which  he  took  for  a  wa 
tering-place,  recovering  its  value  from  the  city."  2 

"  Yes ;  if  it  had  been  a  hired  nag,  for  the 
value  of  which  the  driver  had  to  pay  the  owner, 
his  rights  and  his  wrongs  would  have  been  just 
the  same.3  If  this  coach  had  been  upset  just  now, 
the  road  company  would  have  been  liable  to  the 
coach  proprietor  for  all  injuries  to  this  vener 
able  structure  on  which  we  are  perched,  but  not 
for  any  damages  which  we  might  recover  against 
him  for  bruises  and  scratches,  dislocations  and 
broken  bones  that  might  fall  to  our  lot."  4 

"  Still  there  are  some  cases  of  accidental  dam 
age  which  the  law  regards  as  mere  misfor 
tunes,  or  pure  accidents,  where  no  negligence  or 
fault  is  imputable  to  any  one  ;  as  where  a  man 
was  thrown  out  of  his  wagon  and  broke  his  collar 
bone  in  consequence  of  the  wheel  getting  into  a 
small  rut.  The  court  will  not  assume  that  the 
badness  of  the  road  is  proved  beyond  a  peradven- 
ture  merely  because  an  accident  took  place  while 
the  driver  was  exercising  due  care."  5 

1  Merrill  v.  Hampden,  26  Me.  236  ;  Davis  v.  Bangor,  42  Me.  522. 

2  Colbb  v.  Standish,  14  Me.  198. 

3  Littlefield  v.  Biddeford,  29  Me.  310. 

*  Talmadge  v.  Zanesville  &  M.  Road  Co.,  11  Ohio,  197. 
5  Chappel  v.  Oregon,  36  Wis.  145. 


AND    EVEKY    ONE    CAREFUL.  59 

"  One  is  not  required,  however,  to  exercise  ex 
traordinary  care  and  prudence.1  And  as  old  Lord 
Ellenborough  says,  before  one  can  recover  damages 
he  must  not  only  show  that  there  was  an  ob 
struction  that  caused  the  trouble,  but  also  that  he 
himself  was  not  lacking  in  ordinary  care  and  in 
endeavoring  to  avoid  it."  2 

"  I  always  think  highly  of  Ellenborough's  de 
cisions,"  I  said,  "although  he  was  such  a  ninny 
that  when  in  '  the  Devil's  Invincibles  '  (a  famous 
volunteer  corps),  he  was  ever  in  the  awkward 
squad  ;  and  Eldon  used  to  say  that  he  thought 
Ellenborough  more  awkward  than  himself,  but 
others  thought  it  was  difficult  to  determine  which 
of  the  two  was  entitled  to  bear  the  palm." 

"  Ah,  yes !  '  the  Devil's  Invincibles  '  was  the 
corps  in  which  there  were  some  attorneys,  and 
when  Lieutenant-colonel  Cox,  Master  in  Chan 
cery,  who  commanded,  gave  the  word  '  Charge,' 
two-thirds  of  the  rank  and  file  took  out  their  note 
books  and  wrote  '  6s.  BdS  ' 

"  Ha !  ha !  that  is  as  good  as  the  story  of  the 
volunteer  company  of  lawyers,  who,  when  the 
drill-sergeant  gave  the  command  '  Right  about 
face,'  all  stood  still,  and  cried,  '  Why  ?  ' 

"  Unlike  the  six  hundred, 

'  Theirs  was  to  make  reply, 
Theirs  but  to  reason  why, 
Theirs  not  to  do,  nor  die.'  " 

1  Cremer  r.  Portland,  36  Wis.  92. 

2  Butterfield  v.  Forrester,  11  Bast,  60 


60          EVERYTHING  MUST  BE  SOUND, 

"  You  might  add  the   concluding  lines  of  that 
noble  poem,"  I  said. 

"  '  When  can  their  glory  fade  ? 
Oh  the  huge  charge  they  made  ! 

All  the  world  wondered. 
Pay  them  the  charge  they  made  ! 
Pay  them  the  bill  they  made  ! 
Noble  attorneys.'  " 

"  Good.  Very  good.  Do  you  smoke." 
And  he  added  to  the  effect  of  his  question  by 
handing  me  a  well  filled  case  of  choice  cheroots. 
Soon  we  were  both  lazily  puffing  at  our  cigars,  and 
dreamily  enjoying  ourselves  as  we  drove  along 
past  woodland  and  meadow,  up  hill  and  down, 
over  sparkling,  bubbling  streamlets,  beside  fields 
of  waving  grain. 

The  day  was  charming.  The  heat  of  the  July 
sun  was  tempered  by  a  cooling  breeze  which  blew 
softly  upon  us  as  we  journeyed.  The  dust  had 
been  laid  to  rest  by  the  sprinkling  of  an  early 
shower  ;  the  birds  carolled  gayly  amid  their  leafy 
bowers  ;  here  and  there  the  squirrel  peeped  forth 
from  his  hiding-place  and  chattered  at  us  as  we 
passed,  or  raced  ahead  along  the  zig-zag  fence  ;  at 
one  moment  fluttered  by  a 

Butterfly  ranging  on  his  yellow  wings. 

A  primrose  gone  alive  with  joy,  to  dance  with  living  things  ; 

then  came  large  white  ones  "  which  looked  as  if 
the  May-flower  had  caught  life,  and  palpitated 
forth  upon  the  winds." 

And   my  friend  dreamily  muttered,    "  Would 


AND    EVERY    <^7E    CAREFUL.  61 


that  I  were  an  insect  !  Fancy  the  fun  of  tucking 
one's  self  up  for  a  night  in  the  leaves  of  a  rose, 
and  being  rocked  to  sleep  by  the  gentle  sighs  of 
summer  air  ;  and  having  nothing  to  do  when  you 
awake  but  to  wash  yourself  in  a  dewdrop,  and 
then  eat  your  bedclothes." 

Ever  and  anon  we  heard  the  truly  rural  sounds 
of  the  whetstone  against  the  scythe,  and  the  low 
ing  of  the  kine,  or  the  plaintive  cry  of  some  wan 
dering  lamb.  All  these  arcadian  sights  and  sounds 
acted  as  a  gentle  lullaby  upon  our  senses  already 
soothed  by  nicotine,  and  we  slept. 


62  NEARLY    DRIVEN    TO    DEATH, 


CHAPTER  V. 
NEAELY  DEIVEN  TO  DEATH,  AND  HOW   TO  PASS 

Narrow  Escape.  —  Look  out  for  the  Locomotive  when  the  Bell  rings. 
—  Railway  not  liable  when  Driver  in  Fault.  —  Horses  frightened  by 
Engine.  —  Ferry-boats  and  Men-  — On  the  Wrong  Side.  —  The 
Laws  of  the  Road.  —  Fatal  Indecision-.  —  Lien  on  Trunks.  —  Reflec 
tions  on  Lawyers. 

WE  had  a  sharp  awakening  from  our  calm  re 
pose.  A  shrill  cry  of  "  Stop  !  "  a  jerk  that  nearly 
threw  us  to  the  ground  as  the  driver  reined  in  his 
horses,  the  wild  fierce  screech  of  an  engine,  the 
rumbling  roar  of  a  train  as  it  dashed  by,  recalled 
us  effectually  from  our  wanderings  in  dream-land 
to  the  fact  that  we  had  been  near  a  sudden  and  a 
fearful  death.  The  driver  had  been  nodding 
sleepily  on  his  box  and  had  not  noticed  that  we 
were  so  near  a  railway  crossing,  and  so  had  not 
looked  out  for  the  train  ;  and  when  aroused,  the 
horses'  feet  were  actually  upon  the  track  and  the 
cars  but  some  seventy  yards  distant.  The  train  as 
it  rushed  past  almost  scraped  the  horses'  noses,  so 
little  had  he  been  able  to  back  them.  On  look 
ing  round  I  saw  that  the  track  must  have  been 
visible  for  some  time  before  we  came  upon  it,  and 
one  of  the  ladies  said  that  she  had  heard  a  whistle 
a  few  seconds  previously. 


AND    HOW   TO    PASS.  63 

Of  course,  as  might  be  expected,  we  all  launched 
forth  against  Master  Coachee,  who  was  too  fright 
ened  to  reply.  I  said  :  — 

"  Don't  you  know  that  you  are  bound  to  keep 
your  eyes  open  ?  It  is  your  duty,  and  a  duty  dic 
tated  by  common  sense  and  prudence,  on  approach 
ing  a  crossing,  to  do  so  carefully  and  cautiously, 
both  for  the  sake  of  your  own  passengers  and 
those  travelling  by  rail." l 

"  Yes,"  chimed  in  my  friend,  "  Chief  Baron 
Pollock  says,  that  a  railway  track  per  se  is  a  warn 
ing  of  danger  to  those  about  to  go  upon  it,  and 
cautions  them  to  see  whether  a  train  is  com- 
ing."  ^ 

"  One  must  judge  and  act  reasonably  in  cross 
ing  a  track/'  I  continued.  "  One  must  not  blindly 
and  willfully  drive  upon  it  whether  there  is  danger 
to  be  apprehended  from  his  doing  so  or  not.  If 
one  willfully  .goes  upon  the  line  of  rails,  as  you 
were  about  to  do,  when  danger  is  imminent  and 
obvious,  and  sustains  damage,  he  must  bear  the 
consequences  of  his  own  rashness  and  folly.3  In 
fact,  of  late  it  seems  to  have  been  held  that  a  man 
crossing  a  railway  where  there  are  no  gates  or  flag- 


1  Nicholls  v.  Gt.  Western  Rw.,  27  U.  C.  Q.  B.  393  ;  Boggs  v.  Gt.  Western 
Rw.  Co.,  23  U.  C.  C.  P.  573  ;  Ellis  v.  Gt.  Western  Rw.  Co.,  L.  K.,  9  C.  P.  551 ; 
Johnston  v.  Northern  Rw.  Co.,  34  TJ    C.  Q.  B.  432 ;  Penn.  Rw.  Co.  «.  Beale,  9 
Can.  L.  J.  (N.  S.),298. 

2  Stubley  v.  London  and  Northwestern  Rw.,  L.  R.  1  Ex.  16;  questioning 
Bilbee  r.  London,  B.,  &  S.  C.  Rw.  Co.,  18  C.  B.  (N.  S.),  584. 

3  Winckler  v.  Gt.  Western  Rw.,  18  U.  C.  C.  P.  261 ;  Dascomb  v.  Buffalo  & 
State  Line  R.  R.  Co.,  27  Barb   221  ;  Mackey  v.  N.  Y.  &  C.  R  R.  Co.,  27  Barb. 


64 


NEARLY  DRIVEN  TO  DEATH, 


men  must  stop,  listen,  and  keep  a  sharp  lookout 
for  the  trains."  l 

"  And,"  quoth  my  new  friend,  "  a  traveller  is 
not  exonerated  from  the  duty  of  looking  up  and 
down  the  rails  before  going  upon  them,  by  reason 
of  the  engineer  omitting  to  ring  the  bell  or  blow 
the  whistle  ;  nor  is  the  company  in  such  a  case 
liable  for  injuries,2  unless  it  is  shown  that  the 
engineer's  omission  had  a  tendency  to  produce  the 
loss  or  damage."3 

"  The  Court  of  Appeals  in  the  State  of  New 
York,  however,  holds  that  a  traveller  on  a  public 
road  has  a  right  to  rely  upon  railway  companies 
obeying  the  law  and  giving  the  necessary  warnings 
when  a  train  is  approaching  a  crossing.4  And  if 
through  negligence  h'orses  are  frightened  at  a  cross 
ing,  the  railway  company  is  responsible  for  all  dam 
ages  arising.5  Moreover,  the  late  Sir  J.  B.  Robin 
son,  C.  J.,  of  Ontario  thought  that  where  the  proper 
signals  were  neglected,  the  company  could  not  ex 
cuse  themselves  by  showing  that  the  injured  one 
did  not  manage  so  well  as  he  might  have  done,  or 
that  his  horse  was  restive  or  unsteady  ; 6  and  " 

1  Pittsburg,  F.  W.,  &  C.  Rw.  v.  Dunn,  56  Penn.  St.  280 ;  Bait.  &  Ohio  R.  R, 
v.  Brcinig,  25  Md.378;  Skelton  v.  L.  &N.  W.Rw.,L.  R.,2  C.  P.  631;  Johnston 
v.  Northern  Rw.,  34  U.  C.  Q.  B.  439  ;  Penn.  R.  v.  Ackcrman,  74  Penn.  St.  265. 

2  Havens  v.  Erie  R\v.,  41 N.  Y.  296  ;  Grippen  v.  N.  Y.  0.,  40  N.  Y.  34  ;  Parker 
v.  Adams,  12  Met.  415  ;  Johnston  v.  Northern  Rw.,  supra;  Bellefontaine  Rw. 
v.  Hunter,  33  Ind.  335 ;  Miller  v.  G.  T.  R.,  25  C.  P.  (Ont.)  389. 

3  Galena  &  Ch.  Rw.  v.  Loomis,  13  111.  548. 

4  Hart  v.  Erie  Rw.  Co.,  3  Albany  L.  J.  312.     See  also  Tabor  v.  Mo.  Valley 
Rw.,  46  Mo.  353 ;  S.  C.,  2  Am.  Rep.  270. 

5  Sncesby  v.  Lancashire  &  Y.,  etc.,  1  Q.  B.  Div.  42. 

c  Tyson  v.  G.  T.  Rw.,  20  U.  C.  Q.  B.  258.     See  also,  Ernst  v.  Hudson  River 
R\v.,  35  N.  Y.  9. 


AND    HOW    TO    PASS.  65 

Here  a  low  wailing  cry  of  "  Oh,  we  might  have 
all  been  killed — been   killed  —  been   killed" 
uttered  by  one  of  the  old  maids,  the  others  joining 
in  the  chorus,  struck  upon  our  ears.     I  chimed  in 
with :  — 

"  And  if  we  had,  allow  me  to  inform  you  ladies, 
that  neither  we  ourselves  nor  those  who  come  after 
us  could  recover  damages  against  the  company 
therefor,  because  it  would  have  been  owing  to 
the  gross  carelessness  of  our  driver,1  and  we  would 
be  considered  as  being  in  the  same  position  as  he 
is  and  partakers  with  him  in  his  sins."2 

"  That 's  so,"  said  my  friend.  "  Every  traveller 
in  a  conveyance  is  so  far  identified  with  the  man 
who  drives  or  directs  it,  that  if  any  injury  is  sus 
tained  by  him  from  collision  with  another  vehicle, 
through  the  joint  negligence  of  the  drivers  of  the 
two  traps,  so  that  his  driver  could  not  maintain 
an  action  against  the  other  driver,  the  passenger 
is  himself  equally  prevented  suing."  3 

"  What  a  shame  !  "  chorused  the  Graces,  plus 
one.  "  And  is  there  nobody  you  can  punish  ?  " 
they  querulously  queried. 

"  Oh,  yes  ;  you  can  sue  your  own  driver,  or  his 
employer.  You  have  a  clear  and  undoubted 
remedy  against  them."  4 

1  Winckler  v.  Gt.  Western  Rw.,  18  U.  C.  C.  P.  261 ;  Nicholls  v.  Gt.  Western 
Rw.,27  Q.  B.  U.  C.  382. 

2  Stubley  v.  London  &  N.  W.  Rw.,  L.  R.,  1  Ex.  13. 

3  Thorogood  t>.  Bryan,  8  C.  B.  115,  cited  Id.  131  ;  Rigby  v.  Hewitt,  5  Ex. 
240;  Greenland  v.  Chaplin,  Ib.  247  ;  Armstrong  v  Lancashire  &  Y.  llw.,L. 
R.,  10  Ex.  47. 

4  Maule,  J.,  in  Thorogood  v.  Bryan,  8  C.  B.  131. 
W.  &  R.  OF  T.— 5 


66  NKARLY   DRIVEN    TO    DEATH, 

"  Much  good  it  would  do  you  to  sue  me," 
growled  the  man.  "  You  can't  take  the  breeks 
off  a  Heelander." 

"  It  has  always  seemed  to  me,"  I  remarked  to 
the  legal  gentleman  beside  me,  "  to  be  highly  un 
reasonable  that  by  a  legal  fiction  the  passenger 
should  be  so  identified  with  the  driver.  What  do 
you  think  on  that  point  ?  " 

"  I  quite  agree  with  you,"  he  returned,  "  and 
with  my  celebrated  namesake,  Mr.  Smith,  and  I 
think  that  the  question  why  both  the  wrong-doers 
should  not  be  considered  liable  to  a  person  free 
from  all  blame  —  not  answerable  for  the  acts  of 
either  of  them  —  and  whom  they  have  both  in 
jured,  should  be  more  seriously  considered  than  it 
has  yet  been."  l 

"  I  was  glad  to  see  that  recently  in  New  Jersey 
where  a  man  on  a  street  car  was  injured  by  a 
railway  train,  the  court  held  that  the  negligence 
of  the  car-driver  could  not  prevent  the  man  from 
getting  damages,  the  driver  not  being  his  ser 
vant."  2 

"  By  the  way,"  said  my  friend,  "  did  you  notice 
how  near  we  came  to  the  post  of  the  railway 
crossing  sign-board,  as  the  man  backed  the  horses 
from  the  track  ?  I  think  such  posts  are  a  perfect 
nuisance/' 

"  They  are   not  necessarily  an  indictable  nui- 

1  Note  to  Ashby  v.  White,  1  Smith's  Leading  Cases  (6th  ed.),  355. 

2  Bennett  v.  N.  Y.,  etc.,  36  N.  J.  225. 


AND    HOW    TO    PASS.  67 

sance ;  and  as  the  law  allows  them  to  erect  such  a 
sign,  they  would  not  be  liable  for  any  accident 
arising  from  the  posts  obstructing  part  of  the  road, 
at  least  if  they  were  placed  in  a  reasonably  proper 
manner  with  a  due  regard  to  all  the  surrounding 
circumstances.1  How  the  steam  came  out  of  the 
engine  !  It  is  a  wonder  that  the  horses  were  not 
more  frightened !"  I  added. 

"  Length  of  days,  hard  work,  and  shortness  of 
commons  have  doubtless  curbed  their  spirits.  I 
remember  on  one  occasion  some  railway  em 
ployees  were  endeavoring  to  put  an  engine  on  the 
track  near  a  crossing,  when  my  friend  Mrs.  Stott 
and  another  lady  drove  up  in  a  wagon ;  they 
asked  if  they  might  cross.  One  man  said  '  Yes,' 
and  then  laughingly  winked  at  the  others.  Mrs. 
S.  got  out  and  led  the  horse,  but  before  they  had 
passed  over  steam  was  let  off  through  the  sides  of 
the  locomotive  ;  the  horse  got  frightened,  jumped 
upon  my  friend,  knocked  her  down,  ran  over  her 
and  away.  The  court  held  the  railway  liable  for 
this  injury ;  the  company  tried  to  avoid  the  ver 
dict  by  saying  that  the  damages  arose  from  the 
unnecessary  and  wanton  act  of  their  servants  ; 
but  the  judges  inclined  to  the  opinion  that  even  if 
the  act  had  been  unnecessary  and  wanton,  reck 
less  and  improper,  still  as  it  was  done  in  the 
course  of  the  servants'  employment,  and  for  the 
purpose  of  promoting  it,  the  company  must  bear 

i  Soule  v.  G.  T.  R.,  21  C.  P.  (Ont.),  308. 


68  NEARLY   DRIVEN    TO    DEATH, 

all  the  responsibility.1  Of  course,  however,  com 
panies  are  not  liable  for  accidents  caused  by 
horses  getting  frightened  at  the  smoke,  steam,  or 
noise  of  their  trains,  when  their  servants  do  noth 
ing  amiss."2 

Presently  we  came  to  a  broad  river  unspanned 
by  any  bridge ;  we  had  to  cross,  therefore,  in  an 
old-fashioned  ferry.  All  dismounted.  I  noticed 
that  the  little  wharf  to  which  the  scow  was  at 
tached  was  much  the  worse  for  wear,  but  the 
nymphs  and  naiads  fell  in  love  with  none  of  us,  so 
no  one  broke  through,  fortunately  for  the  ferry 
man,  for  he  would  have  been  liable  for  any  acci 
dent.3  % 

"  Ha  ! ''  said  my  friend,  as  the  stage  gave  a 
great  bump  in  lighting  on  the  boat.  "  My  Chris 
topher  Columbus,  you  ought  to  have  your  flats  so 
that  all  drivers  and  carriages  may  embark  with 
ease ;  and  that  jolt  rattled  the  ivories  in  Jehu's 
jaw."  4 

"  Shut  up  yours,  and  shell  out,"  was  the  laconic 
response. 

"How  deeply  seated  is  habit,"  spake  Mr. 
Smith.  "  The  bee  makes  honey  just  as  sweet 
now  as  when  Samson  stole  it  from  the  lion ;  and 
this  pitiless  navigator  must  be  paid  his  fare  before 

1  Stott  v.  G.  T.  R.,  24  II.  C.  C.  P.  (Ont.),  347;  Limpus  v.  London  Omnibus 
Co.,  1 H.  &  C.  626. 

2  Burton  v.  Phila.,  etc.,B.  K.  Co.,  4  Barring.  (Del.),  252. 
s  Pate  v.  Henry,  5  Stew.  &  Port.  101. 

4  Miles  v.  James,  1  McCord,  167. 


AND    HOW    TO    PASS.  69 

we  start,1  just  as  old  Charon  had  to  receive  his 
obolus  ere  he  would  ferry  his  fleshless  passengers 
across  the  gloomy  Styx." 

"  You  're  too  fleshy  to  lean  up  agin  those  thair 
sticks,  unless  you  want  to  take  a  header  back 
wards,"  quoth  the  ferryman. 

"  Oh ! "  exclaimed  Smith,  starting  inwards  as 
the  rail  started  outwards,  "  you  ought  —  you 
should  —  you  are  bound  by  law  to  have  your 
boat,  and  your  slips,  and  your  landing  stages,  and 
everything  else,  safe  and  secure,  not  only  for  pas 
sengers,  but  also  for  their  horses  and  carriages, 
luggage  and  merchandise ; 2  and  you  are  liable  for 
any  damage  happening  to  a  vehicle,  or  the  horses, 
as  soon  as  they  are  on  board,  although  the  driver 
still  keeps  charge."  3 

The  latter  part  of  the  remark  seemed  called 
forth  by  the  coach  having  begun  to  slip  back 
wards  towards  the  water. 

"  That  thair  is  open  to  argyment,"  said  the 
boatman.  "  I  guess  I  knows  my  bizness.  Some 
old  judges  say  that  a  ferryman  is  not  liable  un 
less  the  animals  be  put  in  his  charge  ;  4  nor  where 
the  driver  don't  take  care.5  Nor  yet  where  the 
critters  are  so  spry  that  they  keant  be  trusted 
on  a  boat,6  which  I  calkerlate  them  thair  nags 
aint." 

Pain  v.   Patrick,  3  Mod.  289. 

Willoughby  v.  Horridge,  12  C.  B.  751 ;  Addison  on  Torts,  493. 

Cohen  v.  Hume,  1  McCord,  439  ;  Fisher  v.  Clisbee,  12  111.  344. 

White  v.  Wimrisimmet  Co.,  7  Cush.  155. 

Wilson  t\  Hamilton,  4  Ohio  St.' 722. 

Fisher  «.  Clisbee,  supra. 


70  NEARLY    DRIVEN    TO    DEATH, 

"  Down  in  Mississippi,  a  ferryman  had  to  pay 
for  twq  stage-horses  that  jumped  overboard,  and 
the  court  said  that  as  soon  as  the  property  is  put 
on  the  boat,  the  boatman  has  it  primd  facie  in  his 
charge,  and  is  responsible  for  it,  unless  the  owner 
consents  to  take  exclusive  charge."  1 

"  I  guess  I  wish  we  poor  chaps  could  make  a 
prime  and  fashions  charge.  I  have  to  Work  this 
old  machine  mornin',  noon,  and  night,  barring 
when  it  is  too  windy,  or  I  have  gone  to  roost,  as  I 
live  away  over  there."  2 

Safely  we  passed  o'er  the  flood,  and  safely  dis 
embarked  and  reseated  ourselves  in  the  venerable 
trap,  which  with  creaks  and  groans  —  as  though 
rheumatic  pains  shot  through  every  bolt  and  bar 
—  ascended  the  bank. 

Just  then  we  passed  a  heavy  wagon.  It  was 
on  the  wrong  side  of  the  road,  and  we  narrowly 
escaped  collision.  I  sung  out  to  the  farmer  driv 
ing  it  :  — 

"  If  you  want  to  drive  on  the  wrong  side,  old 
fellow,  you  should  take  more  care  and  keep  a  bet 
ter  lookout,3  for  if  an  accident  had  happened,  as 
we  had  not  ample  room  to  avoid  your  wheels,  you 
would  have  been  liable  for  the  injury,  being  on 
the  wrong  side  of  the  road."  4 

"  Fine  day,  sir,"  was  the  only  response  that 

1  Powell  v.  Mills,  37  Miss.  691. 

2  Pate  v.  Henry,  5  Stew.  &  P.  101. 

s  Pluckwell  «.  Wilson,  5  C.  &  P.  375. 
<  Chaplin  v.  Hawes,  3  C.  &  P.  554. 


AND    HOW    TO    PASS.  71 

came,  and  our  driver,  with  a  grin,  told  me  that 
the  old  man  was  as  deaf  as  a  door-nail. 

My  companion  turned  and  said  to  me,  "  I  have 
often  wondered  why  the  rules  of  the  road  should 
be  so  different  in  England  from  what  they  are  in 
America.  In  the  old  country  the  three  laws  are  : 
First,  on  meeting,  each  party  shall  bear  to  the 
left ;  second,  in  passing,  the  passer  shall  do  so  on 
the  right  hand  ;  and,  third,  in  crossing,  the  driver 
shall  bear  to  the  left  and  pass  behind  the  other 
carriage.1  In  America,  the  first  rule  is  the  re 
verse,  that  is,  each  party  must  keep  to  the  right ;  2 
but  in  passing,  the  foremost  person  bears  to  the 
left,  and  the  other  passes  on  the  off  side,  and  in 
crossing,  the  driver  bears  to  the  left  hand  and 
passes  behind  the  other  carriage  —  at  least  so  says 
Story."3 

"  'T  is  singular  that  there  should  be  the  differ 
ence,"  I  remarked. 

"  But  that  is  not  the  only  point  of  diversity. 
In  England  these  rules  apply  as  well  to  eques 
trians  as  to  carriages;  while  in  the  United  States 
a  traveller  on  horseback  when  meeting  another 
equestrian,  or  a  carriage,  may  exercise  his  own 
notions  of  prudence,  and  turn  to  the  right  or  to 
the  left.4  Of  course  common  consent  and  imme- 

1  Wayde  v.  Carr,  2  Dowl.  &  Ry.  255. 

2  Kennard  v.  Benton,  25  Maine,  39 ;  and  in  Ontario,  by  Con.  St.  U.  C.  ch.  F6, 
in  meeting,  conveyances  must  turn  to  right,  and  so  when  one  is  overtaken  by 
another. 

3  Story  on  Bail.  §  699. 

*  Dudley  v.  Bolles,  24  Wend.  465. 


72  NEARLY  DRIVEN  TO  DEATH, 

morial  usage  require  that  a  horseman  should  yield 
the  road  to  a  wagon  or  other  vehicle.1  If,  how 
ever,  he  is  mulish  and  will  not  turn  out  when  he 
might  safely  do  so,  and  his  steed  is  injured  by  a 
collision,  he  is  remediless.2  Again,  when  one  is 
ahead  in  America  he  need  not,  unless  he  has  some 
milk  of  human  nature  in  his  veins,  turn  out  at  all 
to  let  a  man  behind  pass,  if  there  is  room  enough 
on  either  side." 

"  But  if  there  is  no  room,  what  then  ? "  I 
queried. 

"  Why,  then,  if  it  is  practicable,  the  front  one 
must  give  an  equal  portion  of  the  road  to  his  fel 
low  biped  behind ;  and  if  it  is  not  practicable, 
number  two  must  follow  in  Job's  steps  and  exer 
cise  the  Christian  grace  of  patience,  and  wait  until 
a  more  favorable  spot  is  reached.  If  number  one 
will  not  turn  out  when  he  can,  he  is  answerable  at 
law  for  it.  His  pursuer,  however,  must  not  take 
the  matter  into  his  own  hands  and  attempt  to 
force  his  way  past."  3 

"•  It  is,"  I  said,  "fortunate,  however,  that  these 
laws  of  the  road  are  not  inflexible  like  those  of 
the  Medes  and  Persians  of  antique  days,  but  may 
on  occasions  be  departed  from."  4 

u  Yes  ;  if  there  is  no  other  carriage  in  the  way, 
or  if  the  road  is  broad  enough,  one  may  go  on 

i  Washburn  v.  Tracy,  2  D.  Chip.  128. 

*  Beach  v.  Par  meter,  23  Penn.  St.  196  ;  Grier  v.  Sampson,  27  Pa.  183. 
s  Angell  on  Highways,  §  340. 

*  Wayde  v.  Carr,  2  Dow.  &  Ry.  255. 


AND    HOW    TO    PASS.  73 

whatever  part  lie  fancies : l  and  in  the  crowded 
streets  of  a  city  situations  and  circumstances  may 
frequently  arise,  where  a  deviation  will  not  only 
be  justifiable,  but  absolutely  necessary.2  And,  of 
course,  one  may  pass  on  the  left  side  of  a  road, 
or  across  it,  in  order  to  stop  on  that  side  ;  3  and 
.conveyances  stationary  may  be  on  either  side."' 

"  I  believe  that  if  there  was  sufficient  room  for 
a  defendant  to  pass  without  inconvenience,  it  will 
not  assist  him  when  sued  to  say  that  the  plaintiff 
was  on  the  wrong  side.5  Mr.  Angell  tells  us  that 
if  a  man,  not  on  his  own  side,  suddenly  meets 
another  and  an  injury  results,  he  who  is  volun 
tarily  in  the  wrong  must  answer  for  all  damages, 
unless  the  other  individual  could  have  avoided 
the  accident.6  And  the  fact  that  the  one  on  the 
wrong  side  is  not  able  to  turn  out  will  not  avail 
him  as  a  defence."  7 

"  Of  course  not.  The  injured  one  has  not  only 
to  show  that  the  injurer  was  on  the  wrong  side,  but 
also  that  he  himself  exercised  ordinary  precaution 
to  avoid  collision.8  If  my  share  of  the  road  is 
trenched  upon  I  cannot  recklessly  run  into  the 

1  Aston  v.  Heaven,  2  Esp.  533  ;  Palmer  v.  Barker,  11  Me.  338.;  Foster  r. 
Goddard,  40  Me.  64. 

2  Turley  v.  Thomas,  8  C.  &  P.  103. 
5  Angell  on  Highways,  §  336. 

*  Johnson  v.  Small,  5  B.  Mon.  (Ken.),  25. 

s  Clay  v.  Wood,  5  Esp.  44 ;  Parker  v.  Adams,  12  Mete.  415  ;  Kennard  » 
Burton,  11  Shepley  (Me.),  39. 
e  Angell,  §  337. 
i  Brooks  v.  Hart,  14  N.  H.  307. 
»  Parker  v.  Adams,  supra. 


74  NEARLY    DRIVEN    TO    DEATH, 

trespasser,  and  then  turn  round  and  sue  for  injury 
arising  from  my  devil-may-care  conduct.  I  may, 
of  course,  try  to  pass,  if  passing  is  reasonably  pru 
dent  ;  if  not,  I  ought  to  delay  and  seek  redress  at 
law,  if  damage  ensue  from  my  detention.1  If  a 
wagon  comes  along  so  heavily  laden  that  I  cannot 
pass  it,  the  driver  should  stop  at  a  convenient 
place  to  let  me  go  by.2  A  man  on  foot,  or  on 
horseback,  or  in  a  light  trap,  cannot  insist  upon  a 
teamster  with  a  heavy  load  giving  up  part  of  the 
beaten  track,  if  there  be  sufficient  room  to  pass 
without  his  doing  so."  3 

"I  believe,"  I  said,  "that  in  winter  when  the 
proper  road  is  covered  with  snow,  and  the  beaten 
track  is  at  the  side,  persons  meeting  on  it  must 
turn  to  the  right."  4 

"  If  a  collision  does  take  place,"  said  Smith, 
who  talked  as  if  he  had  inwardly  digested  all  the 
reports  ever  published,  "  through  a  defendant's 
fault,  the  plaintiff  may  recover  against  him  dam 
ages  commensurate  with  the  whole  of  the  injury 
sustained.5  And,  by-the-by,  I  noticed  the  other 
day,  that  the  laws  of  the  road  do  not  apply  to 
buildings  which  are  traversing  the  highway."6 

"  I  should  think  not,"  I  replied. 

A  pause  for  a  few  minutes  took  place.     Better 

*  Brooks  v.  Hart,  14  N.  H.  307. 

2  Kennard  «.  Burton,  25  Me.  39. 

3  Grieru.  Sampson,  27  Penn.  St.  183. 

4  Jaquith  v.  Richardson,  8  Met.  213 ;  Smith  v.  Dygert,  12  Barb.  613.   ' 
«  Gilberton  v.  Richardson,  5  C.  B,  502. 

c  Graves  v.  Shattuck,  35  N.  II.  25Y 


AND    HOW    TO    PASS. 


far  for  me  if  it  had  never  been  broken  on  that 
clay.  But  it  was  ordained  otherwise. 

"  Well,"  said  Mr.  Smith  at  length,  "  we  have  had 
a  very  pleasant  drive  together,  and  a  very  inter 
esting  conversation.  I  have  enjoyed  myself  very 
much,  for  it  is  not  very  often  that  one  can  meet 
on  the  top  of  a  coach,  in  this  Ultima  Thule  of  civ 
ilization,  with  a  man  who  can  discourse  so  learn 
edly  on  the  law  of  carriers  as  you  have  done.  But 
I  regret  to  say  that  I  must  leave  you  at  this  little 
tavern,  where  the  stage  stops  for  dinner." 

"  I  share  your  regret  fully,  and  I,  too,  have 
thoroughly  enjoyed  myself,  and  even  my  bruised 
toe  has  forgotten  to  twinge  and  throb  during  our 


converse." 


"By  the  way,"  added  Smith,  "I  find  I  have 
forgotten,  or  lost,  my  purse  ;  could  you  kindly  lend 
me  a  V.,  for  I  have  my  fare  to  pay." 

"  Oh,  certainly,"  I  replied,  with  apparent  pleas 
ure,  but  with  inward  heaviness,  for  alas 

I  could  plead,  expound  and  argue, 

Fire  with  wit,  with  wisdom  glow  ; 
But  one  word  for  ever  failed  me, 

Source  of  all  my  pain  and  woe  ; 
Luckless  man !     I  could  not  say  it, 

Could  not  —dare  not  —  answer  :  No ! 

The  transfer  of  the  Five  was  speedily  made, 
and  at  that  moment  the  driver  reined  in  his  old 
horses  and  drew  up  at  the  door  of  a  country  inn. 
Quickly  my  debtor  jumped  off  the  coach ;  with  his 
bag  swinging  in  his  hand,  a  nod  to  me  and  a  low 


76  NEARLY    DRIVEN    TO    DEATH, 

salaam  to  the  ladies,  he  was  walking  away,  when 
the  driver  called  after  him :  — 

"  I  say,  mister,  where  's  that  ere  fare  ?  " 

"  Ah  !  that 's  a  trifle  that  quite  escaped  my  mem 
ory,"  responded  my  quondam  comrade.  "  Never 
mind,  however,  you  will  have  a  lien  upon  my 
trunk  in  the  meantime."  l 

"  Where  's  your  box  ?  "  queried  Jehu. 

"  Oh  !  that 's  a  question  more  easily  asked  than 
answered.  It  is  where  many  a  more  valuable 
thing  is,  in  nubibus,  or  in  partibus  infidelium. 
However,  it  matters  little,  because  you  could  not 
detain  me  for  the  paltry  fare,  nor  the  clothes 
that  I  have  on,  nor  even  this  bag  that  I  have  in 
my  manual  possession.2  So  by-by  to  you." 

And  away  he  went,  leaving  coachee  pouring- 
forth  his  vials  of  wrath  in  epithets  and  expletives 
strong,  if  not  polite. 

"  Alas,"  thought  I  to  myself,  "it  is  such  sharp 
and  improper  conduct  that  makes  men  wish,  like 
Shakespeare's  Dick,  4  to  kill  all  the  lawyers ; ' 
makes  them  abuse  those  who  are  (or  should  be) 
the  counsellors,  secretaries,  interpreters,  and  ser 
vants  of  Justice  —  the  lady  and  queen  of  all  moral 
virtues  —  and  apply  to  the  members  of  our  pro 
fession  the  language  of  Congreve  of  old  :  '  There  's 
many  a  cranny  and  leak  unstopped  in  your  con 
science.  If  so  be  one  had  a  pump  in  your  bosom, 

1  Wolf  v.  Summers,  2  Camp.  631. 

2  Sunbolf  v.  Alford,  3  M.  &  W.  248. 


AND    HOW   TO   PASS.  <  < 

we  should  discover  a  foul  liold.  They  say  a  witch 
will  sail  in  a  sieve,  but  the  devil  could  not  ven 
ture  aboard  your  conscience.'  But  I  can  flatter 
myself  that  an  honest  lawyer,  like  myself,  ;  is  the 
life-guard  of  people's  fortunes  ;  the  best  collateral 
security  for  their  estate  ;  a  trusty  pilot  to  steer 
one  through  the  dangerous  and,  oftentimes,  inevi 
table  ocean  of  contention  ;  a  true  priest  of  justice, 
that  neither  sacrifices  to  fraud  or  covetousness ; 
and  one  who  can  make  people  honest  that  are  ser 
mon  proof.'  He  is  one  who  can 

Make  the  cunning  artless,  tame  the  rude, 
Subdue  the  haughty,  shake  the  undaunted  soul  ; 
Yea,  put  a  bridle  in  the  lion's  mouth, 
And  lead  him  forth  as  a  domestic  cur." 


78          DINING,    RAINING,    LOSING,   AND    ENDING. 


CHAPTER  VI. 

DINING,   RAINING,   LOSING,   AND   ENDING. 

Must  wait  at  Stopping-places.  —  Place  booked  taken  at  any  Time.  — 
Falling  in  ascending.  —  Drenched  with  Rain.  —  Coachmen  are  Com 
mon  Carriers,  and  liable  as  such.  —  Loss  of  Money.  —  Loss  of 
Luggage.  —  Dangerous  Short  Cut.  —  Bridges.  —  Safe  Arrival. 

THE  driver,  annoyed  at  the  loss  of  his  fare,  said 
he  would  drive  ahead  at  once  and  not  wait,  as  he 
usually  did  at  this  place,  for  his  passengers  to  take 
refreshments,  but  as  my  wife  was  hungry  and  the 
old  maids  thirsty,  I  insisted  upon  his  remaining  ; 
for  a  carrier  has  no  right  to  deviate  from  estab 
lished  usages  to  gratify  his  own  whims  and  fan 
cies.1  While  we  were  partaking  of  a  cold  colla 
tion,  portions  of  which,  doubtless,  had  done  duty 
on  several  former  occasions,  a  gentleman  arrived 
at  the  inn,  and  from  his  conversation  with  the 
driver  I  quickly  perceived  that  he  had  paid  his 
fare  for  the  whole  way  from  town  to  our  journey's 
end,  and  that  he  now  intended  to  take  his  seat,  as 
he  clearly  had  a  right  to  do.2  He,  too,  was 
booked  for  an  inside  place,  and  protested  strongly 
because  sufficient  room  had  not  been  left  for  him, 
saying  that  as  more  than  the  legal  number  were 

1  Chitty  on  Carriers,  253 ;  Story  on  Bailments,  §  597. 

2  Ker  v.  Mountain,  1  Esp.  27. 


DINING,    RAINING,    LOSING,    AND    ENDING.  79 

already  on  board,  he  would  not  get  on  but  would 
sue  the  proprietor  for  all  expenses  he  might  be 
put  to  in  performing  the  remainder  of  his  journey 
by  another  conveyance.1 

"  I  took  my  place,  "  he  exclaimed  with  empha 
sis,  "  and  now  you  are  going  to  try  to  squeeze  six 
people  into  an  infernal  box  that  only  holds  five. 
I  '11  take  a  post-chaise  and  bring  an  action  for  all 
the  expenses  incurred.  I  Ve  paid  my  fare.  It 
won't  do  ;  I  told  the  clerk  when  I  took  my  place 
that  it  would  not  do.  I  know  these  things  have 
been  done.  I  know  they  are  done  every  day  ;  but 
I  never  was  done,  and  I  never  will  be.  Those 
who  know  me  best  know  it ;  crush  me."  2 

The  son  of  Nimshi  tried  to  smooth  down  mat 
ters,  but  in  vain ;  and  the  irascible  gent  went  off 
in  high  dudgeon  ;  whereat  I  rejoiced. 

Just  as  we  were  starting,  an  old  woman  ap 
proached,  and  after  some  chaffering  agreed  with 
the  driver  as  to  the  sum  for  which  he  would  carry 
her  to  the  next  village,  and  began  to  mount.  Be 
fore  she  was  up  the  horses  started,  and  she  was 
thrown  to  the  ground  and  injured  so  much  that 
she  could  not  come  with  us.  I  endeavored  to 
apply  some  balm  by  informing  her  that  she  had 
better  sue  the  owner  of  the  stage  ;  for,  she,  being 
a  passenger  as  soon  as  the  contract  was  made,  he 
was  liable  to  her  for  the  negligence  of  his  man.3 

1  Chitty  on  Carriers,  252. 

2  See  Mr.  Bowler's  remarks  in  Pickwick. 

3  Brien  v.  Bennett,  8  C.  &  P.  724 ;  Lygo  v.  Newbold,  9  Ex.  302. 


80  DINING,   RAINING,    LOSING,    AND    ENDING. 

We  had  not  gone  far,  after  our  refreshments, 
before  the  sky  grew  overcast,  the  wind  arose, 
heavy  clouds  began  to  scud  across  the  sky,  distant 
mutterings  of  thunder  grew  more  and  more  audi 
ble,  rolling,  rumbling,  rattling,  nearer  and  nearer, 
the  heavens  were  wrapt  in  gloom,  through  which, 
ever  and  anon,  the  lightning  flashed  vividly. 
Quickly  the  thunderstorm  was  upon  us,  the  rain 
descended  first  in  large  heavy  drops,  then  in  a 
perfect  deluge  ;  the  sky  seemed  on  fire  with  elec 
tric  flashes,  darting  hither  and  thither  like  fiery, 
flying  serpents.  In  vain  the  coachee  whipped  up 
his  wearied  horses  and  made  their  very  bones  to 
rattle,  striving  to  gain  shelter  from  the  pitiless 
storm.  Before  protection  could  be  gained  we  were 
all  drenched  to  the  epidermis ;  even  those  within 
did  not  escape,  for  the  old  stage  leaked  like  a 
sieve  and  let  in  the  flood  at  every  part.  (My 
wife  declared  afterwards  that  she  had  read  that  in 
the  days  of  Henry  II.,  of  France,  there  were 
three,  and  only  three,  coaches  in  existence,  one 
belonging  to  Catherine  de  Medicis,  another  to  the 
fair,  but  frail,  Diana  of  Poictiers,  and  the  third 
to  Rend  de  Laval,  a  noble  seigneur,  and  that  she 
verily  believed  that  this  was  the  one  owned  by, 
the  fat  old  Rend,  so  weak,  so  frail,  so  rickety, 
was  the  old  antediluvian  monster  ;  in  fact,  she 
remarked,  there  was  nothing  strong  about  the  en 
tire  concern  except  the  smell !) 

But,  after  all,  it  was  only  a  thunderstorm,  and 


DINING,    RAINING,    LOSING,    AND    ENDING.          81 

ere  very  long  its  fury  was  overpassed,  the  sun 
emerged  from  behind  the  murky  clouds,  and  we 
all  steamed  away  beneath  its  fiery  rays  like  small 
portable  steam-engines.  Far  worse,  however,  than 
being  thoroughly  damped  ourselves,  the  heavy 
down-pour  hud  penetrated  our  trunks  and  bags, 
playing  the  mischief  with  the  things  therein,  for 
the  carrier  had  not  provided  tarpaulins,  or  cart 
clothes  and  such  necessary  coverings  to  protect 
the  baggage  from  the  rain,  as  he  was  bound  to 
do. 1  The  thoughts  of  the  damages  which  I  might 
recover,  alone  kept  me  from  pouring  forth  my  ire 
upon  the  coachman's  devoted  head. 

Of  course,  proprietors'  of  stage-coaches,2  or  mail- 
coaches,8  who  hold  themselves  out  as  carriers  of 
goods,  as  well  as  of  passengers,  are  liable  as  com 
mon  carriers,  and  responsible  at  common  law  for 
all  damage  and  loss  to  goods  during  the  carriage 
from  what  cause  soever  arising,  save  only  the  act 
of  God  ;  and  this  liability  extends  to  the  luggage 
of  passengers,  as  well  as  to  the  goods  of  strangers, 
although  no  specific  charge  be  made  for  the  lug 
gage.4  In  England  (by  the  Railway  Clauses  Act) 
railways,  stage-coach  proprietors,  and  other  com 
mon  carriers  of  passengers,  their  baggage  and 

1  Webb  v.  Page,  6  M.  &  G.  204  ;  Walker  v.  Jackson,  10  M.  &  W.  163 ; 
Philleo  v.  Sandford,  17  Texas,  227. 

2  Clark  v.  Gray,  4  Esp.  177 ;  Lovett  v.  Hobbs,  2  Shower,  127  ;  Ilutton  v. 
Bolton,  1 II.  Bla.  299  n.  ;  Dwight  v.  Brewster,  1  Pickering  (Mass.),  50;  Jones  v 
Voorhees,  10  Ohio,  145. 

s  White  r.  Bolton,  Peake,  N.  P.  113. 
*  Robinson  v.  Dunmore,  2  B.  &  P.  416. 
W.  &R.  OFT.—  6 


82          DINING,   RAINING,    LOSING,    AND    ENDING. 

freight,  are  put  upon  precisely  the  same  ground, 
both  as  to  liability  and  as  to  any  protection,  priv 
ilege  or  exemption  ;  and  the  same  rule  obtains 
in  the  great  republic,  except,  perhaps,  that  inas 
much  as  transportation  by  rail  is  infinitely  more 
perilous,  a  proportionate  degree  of  watchfulness 
is  demanded  of  carriers  thereby.  Care  and  dili 
gence  are  relative  terms,  and  the  degree  of  care 
and  watchfulness  is  to  be  increased  in  proportion 
to  the  hazard  of  the  business.1 

The  thorough  damping  which  he  had  received 
seemed  to  have  had  a  mollifying  effect  upon  our 
knight  of  the  reins,  and  when  I  ventured  to  ad 
dress  him  on  the  subject  of  his  master's  liability 
for  loss  or  damage  to  luggage,  I  found  him  quite 
thawed  out,  in  fact,  communicative. 

"  Wai,"  said  he,  "I  knows  summat  about  that; 
but  I  rather  guess  you'd  find  yourself  mistook  if 
you  thought  him  liable  for  all  losses,  and  put  a  lot 
of  money  in  your  trunk,  and  did  n't  tell  on  it,  and 
had  it  lost." 

"  Why,"  queried  I,  "  what  about  that  ?  " 

"  Not  much,  only  this  :  a  chap  one  time  thought 
so  as  how  he'd  come  a  sharp  dodge  on  a  coachman, 
so  he  just  put  $11,250  in  his  old  trunk  and  said 
nothing  about  it ;  and  when  they  got  to  their 
journey's  end  the  box  was  nowheres ;  the  man 
tried  to  make  the  owner  of  the  stage  pay,  but 
the  judge  decided  he  could  not." 

i  Commonwealth  c.  Power,  7  Met.  601 ;  Jencks   t>.  Coleman,  2  Sumner, 
221. 


DINING,    RAINING,    LOSING,    AND    ENDING.          83 

"Who  told  you  all  that?" 

"  Wai,  stranger,  I  heerd  it  in  rather  a  round 
about  way  ;  my  master  told  me,  another  man  told 
him,  and  an  angel  told  the  other  man."  1 

"Ah,  indeed  !  "  I  exclaimed,  "  that  is  undoubted 
authority." 

"  Another  time  there  was  a  long  fellow  put  a 
<£50  note  in  his  bag  among  his  old  duds.  In  get 
ting  on  the  stage  he  gave  his  bag  to  the  driver, 
who  lost  it  ;  he  sued  the  master  to  court,  but  the 
jury  only  paid  him  for  his  old  clothes."  2 

"  There  must  have  been  some  stage-coachman 
on  that  jury,"  I  said. 

"  Like  enough  ;  there  's  a  deal  of  them  scattered 
around  every  civilized  country." 

"  I  suppose  you  know,"  I  added,  "  that  if  you 
were  to  carry  parcels  for  your  own  particular 
profit,  your  master  would  not  be  liable  for  the 
loss  of  them,3  unless,  indeed,  he  paid  you  less 
wages,  because  of  the  opportunity  thus  afforded 
you  of  making  small  sums."  4 

"I  guess  there's  no  chance  of  my  makin'  a 
fortun',  along  this  ere  road  that  ere  way.  Folks 
think  I  ought  to  carry  their  traps  for  nothing. 
Look  ye  here,  mister,  how  would  it  be  'sposing  a 
man  took  his  portmantee  with  him,  and  kept  his 
•)wn  eye  on  til  it,  and  it  was  lost  after  all." 


1  Angell  on  Garners,  262. 

*  Miles  v.  Cotfcle,  4  M.  &  P.  630  ;  6  Bing.  743  ;  and  on  this  point  see  chapter  8. 

3  Butter  v.  Basing,  2  C.  &  P.  614. 

4  Dwight  v.  Brewster,  1  Pick.  (Mass.),  50. 


84          DINING,    RAINING,    LOSING,   AND    ENDING. 

"  Oh,  it 's  clear  the  owner  of  the  coach  would  be 
liable.1  But  if  a  gentleman  keep,  for  instance,  his 
overcoat  wholly  in  his  own  custody  and  possession, 
and  does  not  actually  deliver  it  to  the  carrier,  the 
latter  cannot  reasonably  be  held  liable  for  the  loss 2 
if  it  disappears." 

(P.  S.  and  N.  B.  Any  person  or  persons  desirous 
of  becoming  thoroughly  posted  upon  the  all  im 
portant  question  of  the  liability  of  carriers  for  the 
loss  of  baggage,  will  find  it  to  their  advantage  to 
consult  chapter  fifteen  of  this  my  book.) 

"  I  say,  mister,  had  I  better  take  a  short  cut 
over  that  ere  bridge,  which  is  so  rotten  that  I  cal- 
kerlate  it  will  go  down  mighty  soon  with  a  tre 
mendous  whack  into  the  water  below,  or  go  away 
round  a  couple  of  miles  to  the  stone  bridge  ?  " 
queried  the  driver. 

"  Well,"  I  replied,  "  I  think  you  had  better  go 
round,  for  the  law  saith,  if  a  common  carrier  — 
which  you  decidedly  are  in  every  sense  of  the  word 
—  goes  by  ways  that  be  dangerous,  or  drive  by 
night,  or  in  other  inconvenient  times,  or  if  he 
overcharge  a  horse,  whereby  he  falleth  into  water 
or  otherwise,  so  that  the  stuff  is  hurt  or  impaired, 
then  lie  shall  be  charged  for  his  misdemeanor."  3 

"But  why  does  not  the  corporation  repair  the 
bridge  ?  "  I  added. 

"  Oh,  they  don't  own  it ;  old  Squire  Squaretoes 

1  Robinson  v.  Dunmore,  2  B.  &  P.  419 ;  Brooke  v.  Pickwick,  4  Bing.  218. 

2  Tower  v.  Utica  &  Sch.  Rw.,  7  Hill,  47. 

3  Doctor  &  Stud.,  Dial.  2d,  p.  224. 


DINING,    RAINING,    LOSING,    AND    ENDING.          85 

built  it  and  owns  it ;  but  he  lets  folks  cross  it  if 
they  choose,"  replied  the  man. 

"  Then  it  is  clear  we  would  have  no  one  to  sue 
if  any  accident  happened  through  its  defective 
state."  ! 

I  trust  that  my  readers  (if  I  have  any)  will 
understand  that  a  town  is  not  liable  for  injuries 
caused  by  a  bridge  being  out  of  repair,  if  it  has 
become  so,  suddenly  and  unexpectedly,  by  reason 
of  a  freshet,  and  sufficient  time  has  not  elapsed  to 
enable  the  authorities  to  repair  it,  or  to  guard 
travellers  against  the  danger;2  but  if  the  chairman 
of  the  board  of  supervisors  has  had  notice  of  the 
defect,  and  no  proper  precautions  are  taken  to 
guard  against  accidents,  the  town  will  be  held 
liable  for  negligence.3 

Quickly  now  we  drove  along  the  bank  of  a  lit 
tle  babbling,  bubbling  river,  which  "  like  a  silver 
thread  with  sunsets  strung  upon  it  thick  like 
pearls"  wound  in  and  out,  and  round  about,  doub 
ling  the  distance  we  had  to  travel ;  but  I  was 
quite  content  and  sought  not  to  descend  from  my 
high  perch,  for  the  breeze  was 

"  '  Sweet  as  Sabaean  odors  from  the  shores 
Of  Araby  the  blest ;  ' 

and  the  woods  near  by  had  many  verdurous 
glooms  and  winding  mossy  ways,  to  charm  the 
eye,  and  I  had  ever  loved  to  gaze  upon 

1  Gautret  v.  Egerton,  L.  R.  2  C.  P.  371 ;  State  v.  Seawell,  3  Hawks,  193. 

2  Jaquish  v.  Ithaca,  36  Wis.  108 ;  Ward  v.  Jefferson,  24  Wis.  342. 
8  Ibid. 


86  DINING,    RAINING,    LOSING,    AND    ENDING. 

"groups  of  lovely  elm-trees  bending 
Languidly  their  leaf-crowned  heads, 
Like  youthful  maids,  when  sleep  descending, 
Warns  them  to  their  silken  beds.1' 

On  and  on  we  clattered  along  the  rough  and 
stony  road,  rattling  and  jolting,  till  a  loud  and 
sharp  "  Toot-toot-toot,"  with  a  long  clear  flourish 
"  that  warbled  away  in  an  acoustic  ringlet"  from 
the  driver's  horn,  announced  the  fact  that  that 
day's  work  was  done ;  that  our  journey  was  com 
plete,  and  we  were  safe  in  the  little  village  of  Ayr. 

As  our  journey  beyond  this  point  was  upon  the 
trackless  deep,  I  will  here  say  nothing  about  it, 
save  that  we  were  while  on  board  the  steamboats 
neither  blown  up  nor  drowned. 


STATIONS    AND    STARTING.  87 


CHAPTER  VII. 

STATIONS   AND   STARTING. 

Meditations  on  Crossings.  —Bell  or  Whistle.  —  People  on  Track.— 
Access  to  Stations.  —  Slippery  Ice.  —  Checks  on  Trunks.  —  Notice 
of  Arrivals  and  Departures. —Trains  late  as  usual. —Must  keep 
Time.  —  Damages,  Damages.  —  Proof.  —  III  fared  Welfare.  —  Wait- 
ing- rooms  not  Smoke-houses.  —  Charge  of  the  Iron  Horse.  —Tripped 


up. 


IN  course  of  time  I  had  to  go  off  on  business, 
and,  notwithstanding  the  unhappy  demise  of  my 
wife's  step-mother's  brother's  wife's  mother's  aunt, 
I  resolved  to  patronize  the  cars,  and  having  long 
before  settled  the  insurance  question  to  my  own 
satisfaction,  I  purchased  both  a  railway  and  an  ac 
cident  ticket,  and  as  the  proper  hour  for  the  de 
parture  of  my  train  approached,  started  bag  in 
hand,  being  minded  to  go  afoot  to  the  station. 
"  As  I  walked  by  myself,  I  talked  to  myself  and 
myself  replied  to  me,  and  the  questions  myself 
then  put  to  myself  with  the  answers,  I  give  thee," 
my  would-be- wise  reader. 

Coming  upon  the  railroad  where  it  ran  close  to 
a  house  which  hid  the  line  on  one  side  completely 
from  view,  I  was  rather  startled  by  a  freight-train 
dashing  past  within  a  few  feet  of  my  nose,  and  I 


88  STATIONS    AND    STARTING. 

asked  myself :  "  Should  not  a  bell  have  been 
rung?"  and  I  replied:  "  Yes,  wherever  a  train 
crosses  a  highway  there  the  bell  should  be  rung 
or  the  whistle  sounded ; l  and  no  engine  should 
have  gone  at  such  a  speed."  "  Should  not  the 
company  place  a  watchman  at  a  crossing  to  warn 
pedestrians  of  the  approach  of  trains?"  tile  answer 
that  came  was,  "  I  fancy  not,  for  primd  facie,  a 
foot-passenger  crossing  a  railway  is  bound  to  look 
out  for  his  own  safety  ;  2  just  as  it  is  his  duty  to 
use  due  care  and  caution  in  crossing  a  street,  so 
as  not  recklessly  to  get  among  the  carriages."  3 
There  is,  it  appears,  no  general  duty  devolving 
upon  railway  companies  to  place  watchmen  at  such 
places,  but  it  depends  upon  the  particular  circum 
stances  of  each  individual  case  as  to  whether  the 
omission  of  such  a  precaution  amounts  to  negli 
gence  or  not.4  If,  however,  one  is  employed,  his 
neglect  of  duty  will  make  the  company  liable.5 

But  then  this  crossing,  I  thought,  is  peculiarly 
dangerous,  the  line  being  hid  as  it  is  ?  In  such  a 
case  the  mere  occurrence  of  an  accident  to  one 
crossing  will  be  evidence  of  negligence.6  If  a 
railroad  unnecessarily  crosses  a  highway  in  such  a 
manner  and  place  that  travellers  can  neither  see 

1  Galena  &  Chi-  Rw.  i-.  Loomis,  13  111.  548. 

2  Skelton  v,  L.  &  N.  W.  Rw.,  L.  R  ,  2  C.  P.  631 ;  Boggs  i-.  Great  Western 
Rw.,  23  U.  C.  C.  P.  573. 

3  Williams  v.  Richards,  3  C.  &  K.  82;  Cotton  *.  Wood,  8  C.  B.  (N.  S.),  571. 
<  Stubley  v.  L.  &  N.  W.  Rw.,  L.  R.,  1  Ex.  13. 

»  Kissengerv.  N.  Y.,  etc.,  Rw.,  56  N.  Y.  538. 

6  Bilbee 'v.  L.  &  B.  Rw.,  18  C.  B.  (N.  S.),  584  ;  see  also,  Stapley  v.  L.  B.  & 
S.  C.  Rw.,  L.  R.,lEx.  21. 


STATIONS    AND    STARTING.  89 

nor  •  hear  an  approaching  train  until  too  late  to 
save  themselves ;  or  if  a  company  erect  a  building 
so  as  to  shut  off  the  view,  they  will  be  liable  for 
collisions,  in  the  absence  of  negligence  on  the  part 
of  the  injured  ones.1  I  remember  that  once,  on  a 
certain  foggy  morning  in  the  land  of  fogs,  a  man 
took  the  trouble  to  look  up  the  line  and  to  look 
down  the  line,  but  owing  to  the  dimness  of  the 
light  failed  to  see  a  train  coming;  the  engine  never 
whistled,  the  man  was  injured  and  the  company  was 
found  guilty  of  negligence.2  Where  persons  are  in 
the  habit  of  crossing  a  line  at  a  particular  place, 
though  there  is  no  right  of  way  there,  still  the 
responsibility  of  taking  reasonable  precautions  in 
their  use  of  such  place  is  thrown  upon  the  com 
pany.3 

The  omission  to  give  the  signals  required  by 
statute,  such  as,  ringing  the  bell  or  sounding  the 
whistle,  constitutes  a  primd  facie  case  of  negli 
gence  ;  still,  to  make  the  company  liable  for  dam 
ages,  the  injury  must  be  the  result  of  the  want  of 
the  signal,  and  the  onus  of  showing  this  will  not 
be  upon  the  company,  but  upon  the  plaintiff.4 

The  public  has  a  right  to  presume  that  if  the 
proper  warnings  are  not  given  at  a  crossing,  that 
the  speed  of  the  train  will  be  reduced  ;  if  not,  to 

1  Mackay  v.  N.  Y.  C.,  35  N.  Y.  75 ;  Richardson  v.  N.  Y.  C.,  45  N.  Y.  846. 

2  James  v.  Gt  W.  Rw.,  L.  R.,  2  C.  P.  634  n. ;  see  p.  63. 

3  Barrett  v.  Midland  Rw.,  1  F.  &  F.  361. 

*  Galena,  etc.,  Union  Rw.  v.  Loomis,  13  111.  548;  Wakefield  v.  C.  &  P.  R. 
Rw.,  37  Vt.  330. 


90  STATIONS    AND    STARTING. 

prevent  an  injured  one  getting  damage  it  must  be 
proved  that  he  was  rash.  The  company  will  be 
liable  if  he  kept  a  proper  lookout,  though  he  was 
incautious  in  going  on  the  track.1 

Every  one  attempting  to  cross  a  railroad  should 
do  it  with  his  eyes  open.  He  should  listen  for  the 
signals,  notice  all  the  signs  that  may  be  put  up  as 
warnings,  and  look  up  and  down  the  road.2  If, 
however,  he  is  driving  across,  it  does  not  appear 
that  he  is  bound  to  get  out  of  his  carriage,  or  even 
stop  for  the  purpose  of  listening.3  If,  by  the  use 
of  one's  optics,  the  train  could  have  been  perceived, 
it  is  presumed  in  case  of  a  collision,  that  the  man 
hurt  did  not  look,  or  did  not  heed,  and  so  under 
ordinary  circumstances,  the  company  will  not  be 
liable.4  Contributory  negligence  on  the  part  of 
the  afflicted  excuses  the  railroad,  whether  the 
proper  signals  have  been  given  or  not,  or  whether 
the  company  is  guilty  of  any  other  negligence  or 
not.5 

When  a  carriage-way  crossed  a  line  on  the  level, 
and  the  gates  on  the  down  side  of  the  line  being 
open,  young  Wanless,  with  some  other  boys,  en 
tered  on  the  railway  at  the  time  when  a  train  on 
the  up  side  was  passing,  intending  to  cross  as  soon 
as  the  train  had  passed  ;  meanwhile  another  train, 

1  B.  &  0.  Rw.  v.  Trainor,  33  Md.  542  ;  Cliff  v.  Midland  Rw.,  L.  R.,  5  Q.  B. 
258. 

2  Wharton  on  Neg.  §  382  and  notes, 
s  Davis  v.  N.  Y.  C.,  47  N.  Y.  400. 

*  Wharton,  §  382. 

o  Ernst  v.  Hudson  R  Rw.,  39  N.  Y.  61. 


STATIONS    AND    STARTING. 


01 


on  the  down  side,  which  he  could  have  seen  if  he 
had  looked,  knocked  him  down  and  injured  him. 
The  Court  of  Queen's  Bench  and  the  House  of 
Lords  both  held  that  the  company  were  guilty  of 
negligence ; l  and  that  having  the  gate  open  was  an 
intimation  to  the  public  that  the  line  was  clear. 
However,  in  New  York  State  it  was  decided  that 
a  similar  breach  of  duty  only  gave  a  right  to  the 
penalty  affixed  thereto,  and  Avas  not  evidence  of 
negligence : 2  and  that  one  must  keep  a  lookout, 
even  though  no  danger  signal  is  given.3  On  the 
other  hand,  other  American  cases  hold  that  one 
has  a  right  to  expect  a  company  to  do  its  duty, 
and  give  the  proper  notices  and  warnings.4 

When  on  the  point  of  crossing  a  track  about 
the  time  a  train  is  due  one  should  not  bundle  up 
his  head,  so  as  to  impair  the  sense  of  hearing,  and 
then  go  straight  ahead  without  looking  out  for  the 
cars.  If  a  man  does  so  and  is  made  mince-meat 
of,  he  has  only  himself  to  blame,  even  though 
neither  bell  nor  whistle  sounded.5  One  must  not 
even  hold  his  hat  on  with  his  hand  on  a  rainy, 
blowy,  stormy,  snowy  night,  if  he  is  thereby  pre 
vented  seeing  an  approaching  train.6 

1  Wanless  v.  N.  E.  Rw.,  L.  R.,  6  Q.  B.  481 ;  S.  C  ,  L.  R.,  7  E.  &  I.  App.  12  ; 
Stapley  v.  London  &  B.  Rw.,  L.  R.,  1  Ex.  21. 

2  Brown  «.  Buffalo,  etc  ,  22  N.  Y.  191. 

3  Havens  v.  Erie  Rw.,  41  N.  Y.  296. 

4  Hart  v.  Erie  Rw.,  3  Alb.  L.  J.  312 ;  Tabor  v.  Mo.  Vail.  Rw.,  46  Mo.  858 ; 
S.  C.,  2  Am.  Rep.  270. 

5  Steves  r.  Oswego  &  S.  Rw.,  18  N.  Y.  422;  Wilds  v.  Hudson  R.  Rw..  24 
N.  Y.  430  ;  but  see  Chaffee  v.  Boston  &  L.  Rw.,  104  Mass.  108. 

6  Butterfield  v.  Western  Rw.,  10  Allen,  532;  Miller  v    Q.  T.  R.,  25  C.  P. 
(Ont.),  389. 


STATIONS    AND    STARTING. 

A  railway  company  is  not  bound  to  use  the 
same  amount  of  care  towards  strangers  who  vol 
untarily  and  wilfully  go  on  their  track  as  they 
owe  towards  their  passengers.  This,  Mr.  Brand 
found  out  after  he  had  his  legs  cut  off  while  walk 
ing  on  the  track  through  the  city.1  If  one  is  un 
lawfully  on  the  track,  or  contributes  to  the  injury 
by  his  own  carelessness  or  negligence,  yet  if  the 
injury  could  have  been  avoided  by  the  company's 
servants  using  ordinary  care,  the  railway  is  liable 
for  damages.2  An  engine  driver,  however,  is  not 
bound  to  slacken  speed  when  he  sees  before  him, 
on  the  track,  one  whom  he  may  reasonably  sup 
pose  can  take  care  of  himself,  until  he  sees  that 
otherwise  the  man,  woman,  or  child  will  be  run 
over  ;  but  it  is  his  duty  to  check  the  train  so  soon 
as  he  spies  a  very  young  child,  or  apparently  help 
less  person  in  the  way ;  if  he  does  not  do  so  and  a 
collision  ensues,  the  company  will  be  liable  for  the 
consequences.3 

A  company  is  bound  so  to  lay  their  line  at  a 
crossing  that  no  injury  will  be  done  by  reason  of 
the  rails  being  above  the  level  of  the  road.4 

Near  the  station  and  forming  one  way  of  access 
thereto  is  a  bridge,  said  to  be  in  a  dangerous  state, 

1  Brand  t>.  Troy  &  S.  Rw.,  8  Barb.  368;  Anderson  v.  N.  Rw.,  25  C.  P. 
(Ont.),  301. 

2  Brown  v.  Hannibal  &  St.   J.,  etc.,  50  Mo.  461 ;  B.  &  0.  Rw.  v.  Trainer, 
33  Md.  542. 

s  Lake  Shore  Rw.  v.  Miller,  25  Mich.  277 ;  Telfer  v,  N.  Rw.,  30  N.  J.  188 ; 
St.  Louis,  etc.,  v.  Manly,  58  111.  300. 

*  Oliver  v.  N.  E.  Rw.,  L.  R.,  9  Q.  B.  409  ;  Thompson  v.  G.  W.  R.,  24  C.  P. 
(Ont.),  429. 


STATIONS    AND    STARTING  93 

and  across  this  I  saw  several  persons  hurrying, 
but  I  preferred  to  go  round  by  a  longer  way,  for 
although  it  has  been  decided  that  a  company  is 
liable  for  the  death  of  a  passenger  through  the 
faulty  construction  of  a  bridge  erected  by  them 
for  the  more  convenient  access  to  the  station, 
when  there  is  a  safe  one  about  one  hundred  yards 
further  off  which  the  unfortunate  deceased  might 
have  used,1  still  I  considered  discretion  the  better 
part  of  valor  and  chose  keeping  sound  bones  in  a 
whole  skin  to  my  wife  enjoying  plenty  and  pros 
perity  out  of  my  life  insurances.  Besides,  I  recol 
lected  that  Mr.  Justice  Clesby  had  once  said,  that 
where  a  passenger  having  full  knowledge  of  the 
fact,  still  preferred  using  a  dangerous  way  and  in 
consequence  was  injured,  it  would  seem  that  such 
a  foolish  body  would  have  no  ground  of  complaint, 
on  the  principle  of  the  old  maxim  volenti  nonfit  in- 
juria.2  What  risks  men  will  run  to  save  a  few  min 
utes  or  a  few  steps ;  verily  well  saith  the  poet,  — 

"  Of  all  the  creatures  that  fly  in  the  air 
Swim  in  the  sea,  or  tread  earth  so  fair, 
From  Paris  and  Rome  to  Peru  and  Japan, 
The  most  foolish  beast,  as  I  think,  is  man." 

On  entering  the  station-yard  I  found  engines 
puffing  and  snorting,  backing  and  switching  on 
every  side,  and  really  it  was  at  considerable  danger 
of  my  journey  being  summarily  put  an  end  to  ere 
well  commenced,  that  I  made  my  way  to  the  plat- 

1  Longmore  v.  G.  W.  Rw.,  19  C.  B.  (N.  S.)  183. 

2  Bridges  v.  N.  London,  etc.,  L.  R.,  6  Q.  B.  377. 


94  STATIONS    AND    STARTING. 

form.  This  rather  annoyed  me  and  ruffled  the 
habitual  serenity  of  my  temper  (and  the  serenity 
of  the  most  serene  would  be  tried  by  a  locomotive 
spirting  and  squirting  out  a  .jet  of  steam  at  one's 
nether  garments),  for  it  is  the  duty  of  railway 
companies  to  take  all  reasonable  care  to  keep  their 
premises  in  such  a  state  that  those  whom  they  in 
vite  there  (and  they  invite  all  who  may  desire  to 
be  carried  to  any  place  whither  the  line  runs) 
will  not  be  unduly  exposed  to  danger.1  But  they 
need  not  go  so  far  as  to  put  a  hand-rail  upon  a 
stairway  for  unsteady  folks  to  steady  themselves 
with,  where  the  stair  is  protected  on  either  side 
by  walls  ;  and  they  may  put  brass  on  the  steps 
instead  of  lead,  although  it  is  more  slippery.2 

I  had  scarcely  stepped  on  to  the  platform  when 
one  foot  slipped  from  under  me,  and  down  with  a 
whack  I  descended  upon  the  back  of  my  head; 
my  carpet-bag,  too,  fell  with  a  crash,  telling  of 
ruin  to  some  valuable  therein  contained.  Up  rose 
I  in  wrath  and  found  that  a  strip  of  ice  had  been 
the  cause  of  my  discomfiture,  and  I  registered  an 
oath  on  high  that  the  company  should  answer  to 
me  in  solid  gold  for  the  damages  I  had  sustained ; 
for  I  knew  of  one  Shepherd,  who  having  fallen  on 
a  slippery  place,  while  he  tramped  up  and  down 
the  platform  waiting  for  a  train,  recovered  a 
goodly  sum  from  the  company  ;  and  Martin,  B., 

1  Welfare  v.  London  &  Brighton  Kw.,  L.  R.,  4  Q.  B.  693 ;  Stott  v.  Qt.  T.  R., 
24  C.  P.  (Ont.),  347. 

2  Grafter  v.  Metropolitan  Rw.,  L.  R.,  1  C.  P.  300. 


STATIONS    AND    STARTING.  95 

said,  railway  servants  ought  to  be  alert  during 
cold  weather  to  see  whether  there  is  ice  upon  the 
platform,  and  to  remove  it,  or  make  it  safe  by 
sanding  it,  or  otherwise,  if  it  is  there.1 

On  I  strode  in  ire  —  for  I  saw  some  girls  snick 
ering  at  me  —  to  where  the  baggage-master  was 
checking  the  luggage. 

"  Check  this,"  I  exclaimed. 

"  Take  it  into  the  car  with  you,"  he  replied. 

"  I  won't ;  you  must  check  it ;  there's  a  handle," 
I  returned. 

"  I  won't ;  handle  be  hanged ;  you  must  take 
it,"  he  retorted. 

"  All  right,"  I  answered,  inwardly  resolving 
that  as  a  check  had  been  refused  me  when  de 
manded,  the  company  should  pay  me  the  penalty 
of  eight  dollars,  as  well  as  the  costs  of  the  action 
which  I  should  bring  against  them  for  it,  and  that 
I  would  insist  upon  the  conductor  in  charge  of  .the 
train  refunding  me  the  fare  that  I  had  paid  for 
my  ticket.2  I  was  sorry  now  that  I  had  bought 
the  ticket  in  advance,  for  under  the  circumstances 
they  would  have  had  no  right  to  collect  or  receive 
from  me  any  toll  or  fare.2 

I  was  determined  to  teach  railway  companies 
their  duties,  and  baggage-masters  are  far  too  fond 
of  refusing  to  check  small  parcels  or  bags  ;  and  at 
way  stations,  in  their  wisdom,  even  decline  some- 

1  Shepperd  v.  Midland  Rw.  Co.,  20  W.  R.  705  ;  but  see  ante,  p.  9. 

2  Railway  Act,  1868,  §  20,  ss.  5  and  6  (Can.). 


96  STATIONS    AND    STARTING. 

times  to  check  large  trunks,  although  the  law  of 
this  Canada  of  ours  says,  "  Checks  shall  be  affixed 
by  an  agent  or  servant  to  every  parcel  of  baggage 
having  a  handle,  loop  or  fixture  of  any  kind  there 
upon  (though  what  may  be  included  in  the  latter 
term  goodness  only  knows),  and  a  duplicate  shall 
be  given  to  the  passenger  delivering  the  same."  l 

It  was  not  many  minutes  before  I  found  cause 
of  action  number  three  against  the  respectable 
railway  company  to  whose  tender  mercies  I  was 
about  to  commit  my  precious  self.  The  law  di 
rects  that  "  the  trains  shall  be  started  and  run 
at  regular  hours  to  be  fixed  by  public  notice,1'  2 
but  most  locomotives  —  their  drivers  and  conduc 
tors —  treat  that  clause  with  a  contempt  truly  phil 
osophical.  The  train  by  which  I  desired  to  em 
bark  was  overdue  for  half  an  hour,  according  to 
the  time-table  which  hung  mockingly  on  the  wall, 
so  I  looked  about  me  to  see  if  there  had  been 
"  put  up  on  the  outside  of  the  station-house  over 
the  platform  of  the  station  in  some  conspicuous 
place,  a  written  or  printed  notice  signed  by  the 
station-master,  stating  to  the  best  of  his  knowledge 
and  belief  the  time  when  such  over-due  train  might 
be  expected  to  reach  the  station,"  as  it  was  the 
duty  of  the  company  to  do.  Of  course,  no  such 
notice  was  visible,  such  enactments  being  too  often 
deemed  effete  from  the  very  day  they  appear  on 

1  Railway  Act,  1868,  §  20,  s.  5. 

2  Ibid.  §  20,  s.  2. 


STATIONS    AND    STARTING.  97 

the  statute  book,  so  I  still  further  comforted  and 
consoled  my  wounded  feelings  by  the  thought  that 
for  this  neglect  or  omission  they  were  liable  to  an 
action  at  my  suit,  in  which  full  costs  might  be  re 
covered1  (the  latter  was  an  object  of  importance 
just  now). 

I  now  retired  into  the  waiting-room  to  ponder 
over  the  business  that  had  thus  unexpectedly 
turned  up.  I  knew  that  few  men  were  bold 
enough  to  fight  a  great  railway  company  on  any 
question,  and  especially  one  involving  a  small 
amount,  and  that  as  a  result  of  this  railways  have 
been  virtually  exempt  from  the  penalties  attach 
ing  to  many  breaches  of  duty  and  of  contract  which 
they  are  daily  committing;  but  I  determined  to 
sacrifice  myself  for  the  good  of  my  ft-llows.  I  was 
eager,  too,  to  see  my  name  figuring  in  the  reports. 

I  also  now  began  to  reflect  that  if  the  train  was 
much  later,  I  would  miss  my  appointments,  .and 
then  cause  of  action  number  four  would  accrue. 
For  it  is  as  clear  as  daylight  that  if  a  railway  com 
pany  publishes  or  authorizes  the  publication  of  a 
time-table,  representing  that  a  train  will  start  at 
a  particular  hour  for  a  particular  place,  or  arrive 
at  a  particular  hour,  and  through  negligence  no 
train  is  prepared  or  arrives,  the  companv  is  re 
sponsible  in  damages  to  all  persons  who  have  acted 
upon  the  faith  of  the  representation,  and  have  been 
deceived  and  put  to  expense,  and  have  sustained 

1  34  Viet.  c.  43,  §  6  (Can.). 
W.  &R.  OFT.— 7 


98  STATIONS    AND    STARTING. 

damage  thereby  ; l  but  if  they  give  proper  notice 
they  will  not  be  liable  for  any  necessary  delay.2 
A  company  announced  that  their  trains  would  be 
punctual  as  far  as  possible ;  though,  they  said, 
they  did  not  undertake  that  they  would  run  ex 
actly  according  to  the  time-tables,  and  that  they 
would  not  be  liable  for  any  loss  or  damage  aris 
ing  from  unpunctuality  ;  the  court,  however,  held, 
that  a  delay  of  twenty-seven  minutes  en  route 
between  Liverpool  and  Leeds  was  evidence  of 
negligence  or  want  of  reasonable  efforts  to  be 
punctual.3  A  notice  that  a  company  will  not  be 
responsible  for  deviations  from  the  time-tables, 
unless  the  detentions  are  caused  by  the  wilful  neg 
lect  of  their  employees,  is  practically  invalid.4 
The  company  make  a  continuous  representation 
whilst  they  continue  to  hold  out  printed  or  writ 
ten  papers  as  being  their  time-tables,  and  they 
thereby  make  a  public  profession  and  representation 
that  they  will  exercise  their  vocation  of  common 
carriers,  and  'dispatch  passengers  or  goods,  as  the 
case  may  be,  to  certain  specified  places  at  or  about 
the  time  named  in  such  tables  :  and  if  they  fail  to 
do  so  they  commit  a  breach  of  their  duty  as  com 
mon  carriers,  and  are  guilty  of  a  fraudulent  rep 
resentation,  which  may  be  the  foundation  of  an 
action  for  deceit  by  any  one  who,  relying  on  the 

1  Addison  on  Torts,  3d  cd.  447. 

»  Redfield  on  Rail.,  vol.  ii.,  p.  276. 

»  Le  Blanche  v.  L.  &  N.  W.  Bw.,  34  L.  T.  R.  25. 

*  Becke  v.  Q.  W.  R.,  18  Sol.  J.  972. 


STATIONS    AND    STARTING.  99 

representation,  tenders  himself  or  his  goods  for 
conveyance  at  the  appointed  time,  and  finds  there 
is  no  train  about  to  start.1 

Though  neither  time-table  nor  advertisement  is 
an  actual  warranty  for  the  arrival  and  departure 
of  trains  at  the  time  named,  still  companies  are 
unquestionably  liable  for  any  want  of  punctuality 
which  they  could  have  avoided  by  the  use  of  due 
care  or  skill ;  nor  can  they  plead  any  excuse,  the 
existence  of  which  was  known  to  them  when  the 
tables  were  published.2  And  when  there  has  been 
a  change  of  time,  due  care  should  be  used  in  noti 
fying  the  public.3 

I  also  ran  the  risk  of  missing  the  connection  at 
B. ;  but  I  remembered  that  once  upon  a  time  a 
tailor  going  down  into  the  country  to  measure  his 
customers,  in  consequence  of  the  train  not  having 
reached  a  junction  at  the  time  advertised,  missed 
his  connection  and  had  to  spend  the  night  at  the 
junction  and  pay  extra  fare  the  next  morning ;  he 
sued  the  company  and  recovered  the  amount  of  his 
hotel  expenses  and  the  extra  fare,  but  not  for 
damages  sustained  by  not  reaching  his  customers 
at  the  appointed  time  [but  this  rule  seems  to  be 
almost  equivalent  to  a  denial  of  all  beneficial  re 
dress  in  such  cases.4]  The  chief  baron  in  giving 

1  Denton  v.  G.  N.  Rw.,  5  Ell.  &  Bl.  860  ;   In  re  Oxlade,  1  C.  B.  (N.  S.),  454  ; 
Heirn  v.  McCaughan,  32  Miss.  17. 

2  Gordon  v.  M.  &  L.  Rw.,  52  N.  H.  596. 

3  Sears  v.  Eastern  Rw.,  14  Allen,  433. 

*  Redfield  on  Railways,  vol.  ii.,  p  277  n. 


100  STATIONS    AND    STARTING. 

judgment,  stated  that  as  a  rule,  generally  in  ac 
tions  upon  contracts  the  plaintiff  is  entitled  to 
recover  whatever  damage  naturally  results  from 
the  breach  of  the  contract,  but  not  damages  for 
the  disappointment  of  mind  occasioned  by  the 
breach  of  contract.1  When  in  consequence  of  the 
company's  negligence  M.  Le  Blanche  reached  Leeds 
too  late  for  the  Scarborough  train,  and  he  took 
a  special  train  whereby  he  reached  Scarborough 
an  hour  earlier  than  if  he  had  waited  for  the  next 
regular  train,  the  court  considered  that  although 
he  had  no  special  business  at  S.,  yet  still  he  was 
entitled  to  recover  from  the  railroad  authorities 
the  cost  of  the  special  train.  But  a  man  should 
not  take  a  special,  hoping  to  have  the  expense  re 
couped  him,  unless  it  is  a  reasonable  thing  to  do 
under  the  circumstances.2  In  Manchester  (Eng 
land),  a  music  teacher  recovered  against  a  railway 
company  five  shillings  which  he  had  had  to  pay 
for  cab-hire,  the  train  through  delays  having  failed 
to  make  certain  connections.3  If  a  party  bound 
to  do  a  certain  thing  does  not  do  so,  the  other 
party  may  do  it  for  him  as  reasonably  and  nearly 
as  may  be,  and  charge  him  for  the  reasonable  ex 
penses  incurred  in  doing  so.  A  company  cannot 
escape  damages  for  its  failure  to  carry  a  passenger 

1  Ilamlin  v.  G.  N.  R.,  1 II.  &  N.  408,  and  as  to  damages  for  remote  and  col 
lateral  consequences,  see  Story  v.  N.  Y.  &  H.  Rw.,  2  Selden,  85  ;  Ilorner  v. 
Wood,  16  Barb.  386. 

2  Le  Blanche  v.  L.  &  N.  W.  R.,  34  L.  T.  R.  26  ;  reversed  on  Appeal,  W.  Notes, 
May  27, 1876. 

3  Becker  v.  L.  &  N.  W.  Rw.,  cited  in  10  0.  L.  J.  311. 


STATIONS    AND    STARTING.  101 


with  sufficient  dispatch  by  the  fapjb  ^lifti  the  .delay 
was  the  wilful  act  of  the  co#d  actor,  in*  charge  ,of, 
the  train.1  It  must  clearly  appear  -thai/  the  'data- 
ages  were  sustained  without  any  fault  on  the  part 
of  the  traveller,  and  in  spite  of  his  utmost  efforts 
to  avoid  them.2 

The  mere  production  of  a  ticket,  however,  is 
not  sufficient  evidence  of  a  contract  to  carry  a 
passenger  to  a  certain  place  within  a  given  time, 
as  one  Hurst  discovered  when  he  sued  for  various 
expenses  and  losses  sustained  through  missing  a 
certain  train  in  consequence  of  delay  in  starting  ; 
the  time-table  must  be  produced  to  prove  the  con 
tract.3  And  as  I  knew  that  to  prove  that  the 
table  was  issued  by  authority  I  would  have  to 
show  either  that  it  was  bought  at  one  of  the  com 
pany's  stations,  or  at  one  of  their  recognized  re 
ceiving  offices,  or  that  it  was  posted  up  in  some 
office  or  place  where  the  advertisements  of  the 
company  were  usually  placed,4  I  started  off  on  a 
tour  of  investigation  to  see  if  I  could  pick  up  -the 
desired  article,  or  evidence  that  would  answer  my 
purpose,  keeping  in  mind  how  ill  fared  my  friend, 
Mr.  Welfare.  He  once  innocently  inquired  of  a 
railway  porter  when  the  train  would  be  in,  and 
being  referred  by  the  official  to  a  time-table  hang 
ing  upon  the  wall,  he  went  to  consult  it  ;  while 

1  Weed  v.  P.  R.  Rw.,  17  N.  Y.  362. 

2  Benson  v.  New  Jersey  Rw.  Co.,  9  Bosw.  412. 

8  Hurst  v.  Gt.  Western  Rw.,  34  L.  J.  C.  P.  265  ;  Robinson  v.  The  same,  35 
L.  J.  C.  P.  123. 
4  Addison  on  Torts,  p.  487. 


102  STATIONS    AND    STARTING. 

'doing  so,  down  •  tumbled,  through  a  hole  in  the 
rtfoof> -a*, heavy:  plank  <ind  a  roll  of  zinc,  and  smote 
Mr.  Welfare  on  the  neck,  doing  him  grievous 
bodily  harm;  glancing  upwards,  the  poor  stricken 
one  beheld  the  legs  of  a  man  upon  the  roof.  Yet 
for  the  damages  done  the  company  was  held  not 
liable,  as  for  aught  that  my  friend  showed  at  the 
trial  the  man  might  have  been  the  servant  of  a 
contractor  employed  to  mend  the  roof,  or  the  mis 
fortune  might  have  been  the  result  of  a  pure  acci 
dent.1  So  the  sufferings  of  my  friend  served  but 
to  point  a  moral  —Beware  !  —  arid  to  adorn  a  vol 
ume  of  reports. 

But  to  return  from  this  digression  anent  my 
friend,  to  the  topic  on  which  I  was  musing. 
Draper,  C.  J.,  in  one  case,  held  that  a  time-table 
could  not  be  treated  as  a  part  of  the  contract,  but 
amounted  to  a  representation  only ;  and  that  to 
recover  damages  one  would  have  to  show  that  he 
bought  his  ticket  before  the  time  specified  for  the 
train  leaving,  and  not  merely  before  the  arrival  of 
the  train,  for  if  that  were  after  the  time  specified, 
the  would-be  passenger  would  know  as  well  as  the 
company  that  the  time-table  had  been  departed 
from.2 

While  I  was  thus  deeply  ruminating,  an  old 
friend  appeared,  —  a  Q.  C.,  of  high  standing,  at 
the  bar  of  a  neighboring  city,  —  and  we  went  out 
side  to  enjoy  a  chat  and  weed  while  waiting  for 

1  Welfare  v.  London  &  Brighton  R\v.  Co.,  L.  R.,  4  Q.  B.  693. 

2  Briggs  v.  Grand  Trunk  R\v.  Co.,  24  U.  C.  Q.  B.  510,  516. 


STATIONS    AND    STARTING.  103 

the  train.  Seeing  an  elderly  female  turn  up  her 
nose  as  a  whiff  of  smoke  tickled  her  nostrils,  as 
if  it  were  in  very  deed  a  blast  from  the  lower 
regions,  as  King  James  said  it  was,  my  friend 
remarked  :  — 

"  Did  you  see  that  decision  of  Dillon,  C.  J., 
where  he  held  that  a  woman  who  found  the  wait 
ing-room  unfit  for  her  occupation  —  tobacco  and 
other  impurities  being  offensive  to  her  delicate 
nerves  —  and  so  attempted  to  enter  the  cars  which 
had  not  as  yet  come  up  to  the  platform,  and  was 
injured  by  the  giving  way  of  the  platform  steps, 
was  entitled  to  recover  ?  "  l 

"  No,"  I  replied. 

"  He  ruled  that  it  is  the  duty  of  railway  passen 
ger  carriers  to  provide  comfortable  rooms  for  the 
accommodation  of  passengers  while  waiting  at  the 
stations,  and  to  enforce  such  regulations  in  regard 
to  smoking  therein  as  to  enable  persons  to  occupy 
them  in  reasonable  comfort." 

"  A  very  good  decision  for  the  ladies  and  those 
who  have  to  wait  hour  after  hour  in  a  dirty  room 
for  a  train  ages  behind  its  time." 

u  Still  I  think  it  is  pushing  the  doctrine  of  the 
liability  of  companies  rather  far." 

u  Yes,"  I  returned,  "  and  rather  in  the  teeth  of 
the  dictum  of  Mr.  Justice  Hannan,  in  Siner  v. 
Great  Western,2  where  he  said  he  thought  that 

i  McDonald  et  ux.  v.  Chicago  &  N.  W.  R.  Co.,  26  Towa,  124. 
8  L.  R.,  3  Exch.  150. 


104  STATIONS    AND    STARTING. 

juries  took  an  exaggerated  view  of  the  duties  of 
railway  companies  ;  that  the  companies  have  done 
so  much  for  the  comfort  and  convenience  of  trav 
ellers  that  it  is  now  made  the  subject  of  complaint 
if  the  highest  degree  of  luxurious  care  is  not  at 
tained  in  all  their  arrangements." 

"  His  is  a  much  more  sensible  view  of  the 
case,"  said  Smith,  who  held  some  railway  shares, 
"  and  one  more  likely  to  produce  dividends  for 
unfortunate  stock-holders.  If  people  avail  them 
selves  of  the  benefits  of  railway  travellers,  they 
should  make  some  allowances.  Ah  !  look  at  our 
fair  friend  !  " 

She  was  at  the  far  end  of  the  platform,  and  an 
engine  attached  to  a  freight  train  seemed  to  be 
rushing  straight  at  her ;  she  turned  and  fled,  with 
a  scream,  to  avoid  the  charge  of  the  iron  horse, 
and  in  her  hurry  tripped  over  a  barrow  and 
fell  prostrate.  The  career  of  the  locomotive  was 
stopped.  It  appeared  that  its  antics  had  been 
caused  by  the  negligent  displacement  of  a  switch. 
We  raised  the  lady  and  found  that  although 
slightly  damaged  she  was  more  frightened  than 
hurt.  We  consoled  her  with  the  assurance  that 
if  she  chose  to  sue  the  company  she  could  make 
them  pay  for  the  elephantine  gambols  of  the  fiery 
steed  which  had  so  disturbed  her  equanimity.1 

Seeing  a  man  a  short  way  off  to  whom  I  desired 
to  speak,  I  was  on  the  point  of  jumping  down  off 
the  platform,  when  my  Q.  C.  exclaimed :  — 

1  Caswell  v.  Boston  &  Worcester  Rw.,  98  Mass.  194. 


STATIONS    AND    STARTING.  105 

"  Hold  !  be  not  rash  !  If  you  jump,  instead  of 
going  down  by  the  steps,  and  are  hurt,  you  can 
never  make  the  company  pay  for  the  plasters  and 
the  salves  ; l  besides  here  's  the  train." 

And  so  indeed  it  was  at  last.  Up  it  thundered 
to  the  station  amid  screeching  and  bell-ringing  : 
out  rushed  the  passengers  eager  to  reach  the  re 
freshment  room.  The  crowd  pushed  my  chum 
against  a  portable  weighing-machine,  and,  catch 
ing  his  foot  in  it,  he  fell  and  injured  himself. 
Seeing  that  he  was  not  very  seriously  damaged  I 
could  not  help  crying  out :  - 

"  Hold  !  be  not  rash  !  I  knew  a  case  on  all 
fours  with  yours,  where  the  foot  of  a  machine  pro 
jected  above  the  level  of  the  platform  six  inches 
and  was  unfenced ;  there  it  had  stood  for  years 
without  doing  any  damage,  and  it  was  held  that 
there  was  no  evidence  to  go  to  a  jury  of  any  neg 
ligence,  the  machine  being  where  it  might  have 
been  seen,  and  the  accident  not  being  one  which 
could  have  been  reasonably  anticipated.2  An  ex 
actly  similar  case.  Ho  !  ho  !  ho  !  ' 

"  I  wish  the  whole  platform  had  given  way 
with  the  weight  of  that  mob,  and  then  there 
would  without  doubt  have  been  evidence  of  neg 
ligence.  Besides  I  might  have  had  the  pleasure 
of  seeing  you  break  your  leg  ; "  testily  replied 
the  Q.  C.  And  he  added,  and  more  correctly 

1  Forsyth  v.  Boston  &  Alb.  Rw.,  103  Mass.  510. 

2  Cormnan  v.  Eastern  Counties  Rw.,  4  II.  &  N.  781 ;  see  also  Blackman  ». 
London,  B.,  &  S.  C.  Rw.,  17  W.  R.  769. 


106  STATIONS    AND    STARTING. 

than  an  angry  man  .usually  speaks,  "  A  com 
pany  should  not  allow  their  platform  to  be  over 
crowded,  and  they  ought  to  have  adequate  means 
for  protecting  their  passengers  in  the  event  of  an 
unusual  influx  of  travellers.1  .They  are  bound  to 
see  that  the  number  of  porters  at  each  station  is 
adequate  for  the  safety  of  passengers."  2 

"  Ah  !  my  dear  sir,  one  must  be  careful  and 
walk  circumspectly  about  a  station.  You  know 
where  a  man  fell,  seriously  hurting  himself,  on  a 
staircase  down  which  some  forty  thousand  people 
had  passed  every  month  without  an  accident,  the 
court  held  that  there  was  no  evidence  of  neg 
ligence  on  the  part  of  the  company  to  go  to  a 
jury,  although  the  brass  covering  on  the  step  had 
been  worn  smooth,  and  said  that  '  the  mere  fact 
of  a  man  having  fallen  and  hurt  himself  is  not 
sufficient  to  charge  the  company  with  negligence 
in  the  construction  of  their  station  ;  and  the  court 
is  in  an  especial  manner  bound  to  see  that  the 
evidence  submitted  to  the  jury  in  order  to  estab 
lish  negligence,  is  sufficient  and  proper  to  go  to 
them.' "  3 

1  Hogan  v.  S.  E.  Rw.,  28  L.  T.  (N.  S.),  271. 

2  Jackson  r.  Metropolitan  Ew.  L.  R.  10  C.  P.  49. 

3  Grafter  v.  Metropolitan  Rw.  Co.,  L.  R.,  1  C.  P.  300.   Where  on  the  platform 
there  were  two  doors  in  close  proximity  to  each  other,  the  one  for  necessary 
purposes,  had  painted  over  it  the  words  "  For  gentlemen,"  the  other  had  over 
it  "  Lamp  room.'r    The  plaintiff  having  occasion  to  go  to  the  former,  inquired 
its  whereabouts  and  was  directed  to  it :  by  mistake  he  opened  the  door  of  the 
lamp  room,  fell  down  some  stairs,  and  was  injured  :  Held,  that  in  the  absence 
of  evidence  that  the  place  was  more  than  ordinarily  dangerous,  a  nonsuit  was 
right.    Toomey  «.  London  B.  &  S.  C.,  3  C.  B.  (N.  S.),  146. 


TICKETS.  107 


CHAPTER  VIII. 
TICKETS. 

Man  and  Wife  double  as  to  Baggage. —  Money  in  Trunk.—  Authority 
of  American  Decisions.  —  Annual  Tickets.  —  Badge  of  Officers.  — 
Legislature  outwitted.  —  "Tickets,  Sir."  —  "Good  for  this  Day 
only."  —  "Good  for  this  Trip."  —  Stepping  off .  -  Lose  a  Ticket, 
and  pay  again.  —  The  Acts. 

JUST  as  we  were  starting,  I  overheard  an  al 
tercation  between  the  baggage-man  and  a  woman 
of  a  rather  masculine  appearance,  "  with  angular 
outlines  and  plain  surface,  hair  like  the  fibrous 
covering  of  a  cocoanut  in  gloss  and  suppleness 
as  well  as  color,  and  a  voice  at  once  thin  and 
strenuous  —  acidulous  enough  to  produce  efferves 
cence  with  alkalies,  and  stridulous  enough  to  sing 
duets  with  the  katydids."  He  was  asserting  that 
she  had  too  much  baggage  and  that  she  must  pay 
freight ;  the  woman  demurred  to  this,  and  pro 
tested  that  as  she  and  her  husband  were  travelling 
together  they  were  entitled  to  a  double  quantity 
of  luggage.  In  this  she  was  clearly  right,  as, 
though  the  law  considers  that  a  man  and  a  woman 
joined  together  in  the  bonds  of  wedlock  are  one, 
still  as  respects  baggage  they  are  two,1  or  half 
a  dozen,  if  one  may  judge  from  Saratoga  trunks. 

i  Great  Northern  Rw.  v.  Shepherd,  8  Ex.  30. 


108  TICKETS. 

The  disputants  moved  off  and  I  did  not  hear  the 
functionary's  decision. 

As  my  companion  opened  his  pocket-book  to  put 
in  his  checks,  I  noticed  that  he  had  nothing  therein 
except  a  few  cents,  so  I  remarked  jokingly :  — 

"  You  don't  appear  to  have  much  of  the  need 
ful  about  you." 

He  replied,  "  Pshaw  !  I  am  not  such  a  goose 
as  to  carry  money  in  my  pocket  to  afford  the 
light-fingered  gentry  an  opportunity  of  enriching 
themselves  at  my  expense." 

"  But  how  do  you  manage  to  travel  without  mon 
ey  ?     I  should  like  to  learn  the  secret,"  I  said. 
"  So  should  I.     I  carry  my  cash  in  my  trunk." 
"  In  your  trunk  !     Suppose  you  lose  it  ?  " 
"  Well,  the  company  's  liable,"  he  replied. 
"  Shouldn't  think  so,"  I  said. 
:t  But  I  am  sure  of  it.     It  has  been  held  that 
common  carriers  of  passengers  are  responsible  for 
money  bond  fide  included  in  the  baggage  of  a  pas 
senger,  for  travelling  purposes  and  personal  use, 
to  an  amount  not  exceeding  what  a  prudent  man 
—  like  myself  for  instance  —  would  deem  proper 
and  necessary  for  the  purpose.1     But  they  are  not 
responsible  for  money  beyond  such  an  amount,  or 
intended  for  other  purposes,  unless,  of  course,  the 
loss  is  occasioned  by  the  gross  negligence  of  the 
carriers  or  their  servants."  2 

1  Jordan  v.  Fall  River  Rvv.,  5  Gush.  69. 

2  Orange  County  Bank  v.  Brown,  9  Wend.  85 ;  Weed  v.  Saratoga  &  Sen. 
Rw.,  19  Wend.  534 ;  Duffy  i:  Thompson,  4  E.  D.  Smith,  178. 


TICKETS. 


109 


"  Well,  I  don't  think  you  are  a  prudent  man ; 
besides,  I  fancy  that 's  only  an  American  author 
ity,"  I  remarked. 

"  Only  an  American  authority  !  Suppose  it  is,  it 
is  not  to  be  despised.  Brain  well,  B.,  once  said, 
that  although  the  American  authorities  are  not 
indeed  binding  upon  us,  still  they  are  entitled  to 
respect  as  the  opinions  of  professors  of  English 
law,  and  entitled  to  respect  according  to  the  posi 
tion  of  those  professors  and  the  reasons  they  give 
for  their  opinions,1  and  Spragge,  C.,  in  a  late  case, 
uses  a  similar  expression."  2 

"  Of  course  I  bow  to  the  dictum  of  the  learned 
baron  and  chancellor.  But  doubtless  there  are 
American  cases  the  other  way." 

"  Perhaps.  In  fact  I  know  there  are.3  But 
the  great  American  authority,  Judge  Redfield, 
thinks  they  are  incorrect.4  I  can  give  you  a  Penn 
sylvania  case  sustaining  the  Massachusetts  one  I 
quoted ;  and  that  is  where  the  company  in  their 
advertisements  stated  that  passengers  were  pro 
hibited  from  taking  anything  as  baggage  but  wear 
ing  apparel,  which  would  be  at  the  risk  of  the 
owner,  and  the  trunk  of  a  passenger  contained 
specie  — the  extra  weight  beyond  the  usual  allow 
ance  was  paid  for  and  the  company's  agent  took 

1  Osborn  v.  Gillett,  L.  R.,  8  Ex.  92. 

2  Deedes  v.  Graham,  20  Grant,  258,  270. 

s  Grant  v.  Newton,  1  E.  D.  Smith,  95 ;  Chicago  and  Aurora  Rw.  v.  Thomp- 
eon,  19  111.  578. 
*  Red  on  Railways,  vol.  ii.,  pp.  56-58. 


110 


TICKETS. 


charge  of  it.  The  trunk  wandered  from  the  right 
way,  went  astray  and  was  lost ;  and  it  was  held 
that  it  was  not  incumbent  upon  the  passenger  to 
inform  the  carrier  of  the  contents  of  the  trunk  un 
less  he  was  asked,  and  that  it  was  immaterial 
whether  it  was  to  be  considered  baggage  or  freight, 
and  that  the  company  was  liable  for  its  loss  through 
the  negligence  or  fraud  of  their  agents."  1 

"  Well,  such  may  be  the  law  on  the  other  side 
of  the  line,  but  in  this  hyperborean  Dominion  of 
ours  I  must  say  that  I  think  it  is  somewhat  differ 
ent.  I  think  that  if  the  conduct  of  the  traveller 
has  in  any  way  contributed  to  the  loss,  he  has  no 
ground  at  common  law  for  demanding  compensa 
tion  from  the  carrier.2  Why,  there  is  that  old 
case  in  Burrows  where  a  prudent  man  like  your 
self  hid  ,£100  stg.  in  an  old  nail-bag  with  some 
hay,  and  gave  it  to  a  common  carrier  to  be  taken 
to  a  banker  ;  the  money  was  lost,  but  the  carrier 
was  held  not  responsible,  as  the  consignor  had 
neglected  to  tell  him  the  exceeding  value  of  the 
bag  and  so  prevented  him  taking  due  care  of  it.3 
Then  there  was  the  case  of  the  guineas  tied  up 
with  a  bit  of  string  in  a  brown-paper  parcel,4  the 
case  of  the  sovereigns  in  the  tea,5  and  the  bank- 

1  Camden  &  Amboy  Rw.  v.  Baldauf,  16  Penn.  St.  (4  Harris),  67;  see  also 
AV'alker  v  Jackson,  10  M.  &  W.  161,  as  to  not  inquiring  contents,  and  Crouch 
c.  L.  &  N.  W.  Rw.,  14  C.  B.  255,  as  to  right  to  inquire. 

2  Butterworth  v.  Brownlow,  34  L.  J.  C.  P.  257. 

3  Gibbon  v.  Paynton,  4  Burr.  2298. 

4  Clay  v.  Willan,  1  H.  B.  298. 

s  Bradley  v.  Waterhouse,  3  C.  &  P.  318. 


TICKETS.  Ill 

notes  and  gold  in  the  school-boy's  box,1  in  all  of 
.which  the  carriers  were  held  relieved  from  liability. 
Then  in  England  there  is  the  Carrier's  Act  (11 
Geo.  IV.  and  1  Wm.  IV.,  c.  68),  applying  to  all 
goods  above  <£10."2 

Here  I  was  interrupted  by  the  sudden  cry  of 
"Tickets!  Tickets!  "  which  rang  through  the  car. 
The  conductor  entered,  and  stopped  in  front  of  a 
gentleman  who  said  :  — 

"  I  have  not  got  my  ticket  here.  I  hold  a  sea 
son  one." 

"  That  won't  do,  sir  ;  "  said  the  man.  "  Hold 
ers  of  annual  tickets  travelling  on  the  line  are 
bound  to  produce  their  tickets  as  much  as  ordinary 
passengers.3  So  take  your  choice,  show  your 
ticket,  pay  your  fare,  or  out  you  go."  4 

u  Well,"  replied  the  gentleman,  "  sooner  than 
be  turned  out  with  my  baggage,  wherever  you  in 
your  wisdom  should  deem  best,  I  will  pay  my 
fare." 

u  Don't  do  it,  sir ;  "  I  almost  without  intending 
it  called  out,  so  eager  was  I  in  my  crusade  against 
the  company,  "  the  conductor  has  no  right  to 
demand  the  tickets,  nor  receive  any  fare,  nor  in 
fact  can  he  exercise  any  of  the  powers  of  his  office, 

1  Batson  r.  Donavan,  4  B.  &  Aid.  37. 

2  By  it  no  carrier  is  liable  for  loss  or  injury  to  any  articles  of  great  value  in 
small  compass,  or  for  money,  bills,  notes,  jewelry,  etc.,  above  £10,  unless 
the  value  and  nature  of  the  property  has  been  declared,  and  an  increased 
charge  paid  for  it. 

3  Woodard    v.    Eistern  Counties  Rw.,  7  Jur.  (N.  S.),  971,  4  L.  T.  (N.  S.), 
336  ;  Downs  v.  N.  Y.  &  N.  H.  Rw.,  36  Conn.  287. 

*  Railway  Act  (Can.)  1868,  §  20,  s.  12. 


112  TICKETS. 

or  meddle  or  interfere  with  any  passenger  or  his 
baggage  unless  he  has  upon  his  hat  or  cap  a  badge 
indicating  his  office  ; 1  and  a  company  before  they 
can  enforce  any  law  as  to  the  production  of  tickets 
must  bring  themselves  strictly  within  the  terms  of 
the  law."  2 

'•  Sold  again  !  "  cried  the  wretched  official,  as  he 
lugged  out  from  his  coat  pocket  a  small  cap  orna 
mented  with  the  word  "  Conductor"  and  showing 
it  to  me  he  added,  "  You  pretend  to  know  a  great 
deal  about  the  law,  so  perhaps  you  recollect  that 
the  statute  does  not  say  that  the  cap  or  hat,  with 
the  badge,  is  to  be  worn  on  the  head.  The  law 
in  its  wisdom  assumed  that  officers  of  the  company 
would  or  must  have  caps  or  hats,  and  that  they 
would  or  must  wear  them,  and  wear  them  upon 
the  head,  but  it  did  not  enact  that  they  should  do 
so.3  It  never  entered  the  wise  noddles  of  the  leg 
islators  at  Ottawa  that  a  man  might  own  two  caps, 
a  jolly  fur  one  for  use,  and  another  little  chap  for 
show." 

"I  acknowledge  that  I  spoke  with  undue  haste," 
I  meekly  replied,  feeling  very  crestfallen  as  I  heard 
audible  smiles  from  several  of  the  passengers. 

But  the  remorseless  railway  man  continued:  "It 
is  plain  by  the  law  of  Canada  that  a  passenger  is 
not  obliged  to  purchase  a  ticket  before  he  enters 
the  company's  car ;  he  may  pay  the  conductor,  if 

1  The  Railway  Act  1868,  §  20. 

2  Jennings  v.  Gt.  N.  Rw.,  L.  R.,  1  Q.  B.  7. 

3  Farewell  v.  G.  T.  R.,  15  U.  C.  C.  P.  427. 


TICKETS.  113 

he  pleases,  the  fare.  But  if  the  passenger  pays 
and  receives  a  ticket,  then  he  accepts  the  ticket 
upon  the  condition  that  he  will  produce  it  and  de 
liver  it  up  when  required  by  some  duly  authorized 
person,  and  in  such  case  it  is  part  of  the  contract : l 
so,  my  dear  sir,"  he  said  soothingly  to  the  gentle 
man,  though  to  me  his  words  were  very  swords, 
"  please  produce  your  ticket,  or  pay  a  second  time. 
If  you  refuse,  it  will  be  too  late  for  you  to  produce 
it  when  I  have  given  the  signal  to  stop  the  train 
to  put  you  off."  2 

One  lady,  who  appeared  to  be  of  the  suspicious 
class,  rather  hesitated  when  the  conductor  requested 
her  to  give  up  her  ticket,  and  take  his  check  in 
stead,  but  my  friend  told  her  that  it  was  one  of 
the  rules  of  the  line  and  that  she  was  bound  to 
obey  it.3 

When  the  conductor  at  length  came  up  for  my 
ticket  I  quietly  shewed  it,  and  telling  him  of  the 
circumstances  connected  with  the  refusal  of  the 
baggage-man  to  check  my  trunk,  asked  him  to  re 
fund  the  fare;  this,  as  I  expected,  he  refused  to  do, 
adding  that  my  friend  would  do  as  a  witness  to 
prove  that  I  had  made  the  demand  in  case  I  chose 
to  sue  the  company. 

After  this  obnoxious  individual  had  departed, 
the  Q.  C.  entered  into  a  lengthy  disquisition  con 
cerning  railway  tickets;  he  remarked  that  the 

1  Duke  v.  Great  Western  Rw.,  14  U.  C.  Q.  B.  377. 

2  State  v.  Thompson,  20  N.  H.  250. 

3  N.  R.  Rw.  v.  Paige,  22  Barb.  130. 
W.  &R.  OFT.— 8 


114  TICKETS. 

words  usually  printed  on  them,  "  '  Good  for  this 
day  only,  A.  to  B.,'  created  a  contract  on  the  part 
of  the  company  to  convey  the  holder  in  one  con 
tinuous  journey  from  A.  to  B.,  to  be  commenced 
on  the  day  of  issuing  the  ticket,  and  that  if  a 
passenger  alighted  at  an  intermediate  station  he 
would  forfeit  all  his  rights  under  the  ticket,  and 
could  not  claim  to  be  carried  on  to  his  journey's 
end  in  a  subsequent  train  without  paying  a  new 
fare.1  And  the  same  rule  holds  good  when  the 
ticket  is  marked  "  Good  for  this  trip  only  ;  "  2  and 
when  marked  "  Good  for  one  passage  on  this  day 
only,"  it  can  only  be  used  on  the  day  of  its  date.3 
And  where  a  ticket  with  the  words,  "  Good  for 
this  trip  only,"  marked  upon  it,  and  unmutilated, 
but  a  few  days  old,  was  presented,  it  was  held 
that  it  was  primd  facie  evidence  that  the  holder 
had  paid  the  regular  fare,  was  entitled  to  be  car 
ried  between  the  places  named,  and  that  the  ticket 
had  never  been  used ;  and  also  that  such  words 
referred  to  no  particular  trip,  or  time,  but  only  to 
a  continuous  trip  which  might  be  made  on  the 
date  or  any  subsequent  day.4  Some  companies 
give  their  conductors  power  to  allow  passengers  to 


1  Briggs  v.  G.  T.  Rw.,  24  U.  C.  Q.  B.,  510 ;  Dietrich  r.  Pcnn.  A.  Rvv.,  8  C. 
L.  ,1.  (N.  S.),  202 ;  McClure  v.  Phil.,  Wil.,  &  Bait.  Rw.,  34  Md.  532 ;  Boice  v. 
Hudson  R.  Rw.,  61  Barb.  611  ;  Cunningham  v.  G.  T.  R.,  11  L.  C.  Jur.  107; 
Cheney  v.  Boston  &  M.  Rw.,  11  Met.  121 ;  Elmore  v.  Sands,  54  N.  Y.  512 

2  Cheney  v.  Boston  &  Maine  Rw.,  11  Met.  121. 

3  State  v.  Campbell,  3  Vroom,  309. 
«  Pier  v.  Finch,  24  Barb.  514. 


TICKETS.  115 

stop  by  the  way  by  endorsing  permission  on  the 
ticket,1 

Companies  have  no  intention  of  allowing  a  man 
after  he  has  travelled  on  a  ticket  for  a  time  by  one 
train  to  leave  it,  and  afterwards,  at  his  august 
pleasure,  to  resume  his  seat  in  another  train  at 
some  intervening  part  of  the  road  ;  2  such  proceed 
ings  would  lead  to  endless  confusion,  trouble,  and 
annoyance.  But  it  appears  that  when  one  has  tick 
ets,  in  the  coupon  form,  over  distinct  lines,  if  they 
contain  no  restrictions  one  may  delay  as  long  as 
he  likes  at  the  different  changing  places,8  unless  he 
voluntarily  and  negligently  detaches  the  coupon.4 

One  Craig  bought  a  ticket  in  Buffalo  marked 
"  Good  only  for  twenty  days  from  date,"  from 
Buffalo  to  Detroit.  After  viewing  the  glories  and 
magnificence  of  thundering  Niagara  he  took  his 
seat  in  the  afternoon  accommodation  train  of  the 
Great  Western  at  the  Suspension  Bridge.  This 
train  ran  on  to  London,  but  Craig  for  his  own 
pleasure  got  out  at  St.  Catherines  and  went  up  to 
see  the  town.  As  the  night  express  was  going 
through  that  fashionable  watering-place  he  applied 
to  be  allowed  to  travel  by  it  on  the  ticket  he  held, 
and  on  being  refused  sued  the  company.  The 
court,  however,  considered  that  the  ticket  bound 
the  company  to  carry  the  plaintiff  on  one  contin- 

1  McClurer.Pb.il.,  Wil.,  &  Bait.  Rw.,  34  Md.  532. 

2  State  v.  Overton,  4  Zabriskie,  438  :   Cincinnati,  Columbus,  &  C.  Rw.  v. 
Bartram,  11  Ohio  St.  (U.  S.),  457. 

3  Brooke  v.  Grand  Trunk  Rw  ,  15  Mich.  332 
*  Hamilton  v.  N.  Y.  C.,  51  N.  Y.  101. 


116  TICKKTS. 

uous  journey  from  the  Suspension  Bridge  to  De 
troit,  giving  him  the  option  of  taking  any  passen 
ger  train  from  the  point  of  commencement,  and  if 
'that  train  did  not  go  the  whole  distance,  to  con 
vey  him  the  residue  of  the  journey  in  some  other 
train,  the  whole  journey  to  be  completed  in  twenty 
days ;  but  that  it  did  not  give  the  holder  the  right 
to  stop  at  every  or  any  intermediate  station  as 
Mr.  Craig  contended.1  If  one  has  left  the  train  in 
which  he  started  on  his  journey,  the  fact  that  he 
has  subsequently  entered  another  train  and  trav 
elled  over  a  part  of  the  remaining  distance  with 
out  being  required  to  pay  fare  by  the  conductor 
in  charge,  does  not  prejudice  the  company  or  re 
new  the  contract.2  But,  said  my  friend,  "I  be 
lieve  that  in  this  last  case  Agnew,  J.,  guarded  his 
meaning  by  saying  that  there  might  be  excep 
tions  to  the  general  rule,  where  from  misfortune 
or  accident,  without  his  fault,  the  transit  of  the 
passenger  is  interrupted,  and  he  afterwards  re 
sumes  his  journey.  If,  however,  one  has  forfeited 
his  right  to  be  carried  any  further  by  his  stopping 
over,  and  yet  the  company  continue  to  carry  him, 
they  are  bound  to  exercise  reasonable  care  both 
towards  him  and  towards  his  baggage.3 

While  I  was  listening  intently  to  the  words  of 
knowledge  that  were  flowing  like  some  mighty 
river  from  the  lips  of  the  learned  counsel,  and 

1  Craig  v.  Great  Western  Rw.  Co.,  24  U.  C.  Q.  B.  504 ;  Boston  &  Lowell  Rw 
v.  Proctor,  1  Allen,  267  ;  Shedd  r.  Troy  &  Boston  Rw.,  40  Vt.  88. 

2  Dietrich  v.  Penn.  A.  Rw.  Co.,  8  0.  L.  J.  (N.  S.),  202. 

3  Smith  v.  G.  T.  R.,  35  Q.  B.  (Ont.),  547,  557. 


TICKETS.  117 

wondering  how  and  why  he  was  so  deeply  read  on 
the  topic,  he  suddenly  stopped  in  his  discourse, 
pointed  his  finger  at  a  little  child  who  had  got 
possession  of  his  mother's  ticket  and  was  quietly- 
by  a  process  of  suction  reducing  it  to  an  unsightly 
and  undistinguishable  pulp,  then  raising  his  voice, 
Smith,  Q.  C.,  exclaimed  :  — 

"  Excuse  me,  madam,  you  ought  to  be  more 
careful  of  your  ticket,  for  if  you  lose  or  destroy  it, 
the  conductor  (unless  he  knows  for  a  fact  that 
you  actually  did  pay  your  fare  and  obtain  a 
ticket)  will  be  justified  in  demanding  repayment 
from  you,  and,  if  you  refuse  it,  may  put  you  off 
the  cars.  Just  listen  to  what  the  late  lamented 
Chief  Justice  Robinson  says  on  this  very  point, 
and  where  a  married  woman,  and  for  aught  I 
know  a  mother  like  yourself,  was  turned  off  the 
train,  or  had  to  pay  her  fare  a  second  time,  I  for 
get  which." 

And  before  the  lady  had  recovered  from  her 
astonishment  he  dived  into  his  red  bag,  produced 
an  extensive  brief,  and  reads  as  foil  ows  :  — 

"  It  may  seem  hard  to  a  man  who  has  lost  his 
ticket,  or  perhaps  had  it  stolen  from  him,  that  he 
should  have  to  pay  his  fare  a  second  time  ;  but  it 
is  better  and  more  reasonable  that  a  passenger 
should  now  and  then  have  to  suffer  the  conse 
quences  of  his  own  want  of  care,  than  that  a  sys 
tem  (the  system  of  issuing  tickets  as  now  in 
vogue)  should  be  rendered  impracticable,  which 
seems  necessary  to  the  transaction  of  this  impor- 


118  TICKETS. 

tant  branch  of  business.  It  is  not  for  the  sole 
advantage,  or  the  pleasure  and  caprice  of  the  rail 
way  company  that  these  things  are  done  in  such  a 
hurry.  The  public,  whether  wisely  or  not,  desire 
to  travel  at  the  rate  of  four  or  five  hundred  miles 
a  day,  and  that  rapidity  of  movement  cannot  be 
accomplished  without  peculiar  arrangements  to 
suit  the  exigency  which  must  be  found  sometimes 
to  produce  inconvenience.  If  the  passenger  in 
this  case,  who  I  have  no  doubt  lost  her  ticket, 
could  claim  as  a  matter  of  right  to  have  it  be 
lieved  on  her  word  that  she  had  paid  her  passage, 
everbody  else  in  a  similar  case  must  have  the 
same  right  to  tell  the  same  story  and  to  be  carried 
through  without  paying  the  conductor,  and  with 
out  showing  to  him  a  proof  that  he  had  paid  any 
one."  i 

"  But,"  said  the  lady,  who  during  the  delivery 
of  the  judgment  had  time  to  recover  her  senses 
and  her  ticket,  "  but  my  friend  here  could  vouch 
for  me  that  I  spoke  the  truth." 

"  Ah,  my  dear  madam,  do  not  deceive  yourself  ; 
reflect  that  in  Massachusetts  it  was  decided  that 
if  carriers  require  passengers  to  buy  tickets  before 
going  on  board,  and  to  deliver  them  up  on  going 
off,  and  the  passenger  loses  his  ticket,  he  must  on 
landing  pay  again  ; 2  and  in  Curtis  v.  G.  T.  R. 
Co.,3  that  ornament  of  the  Canadian  bench,  Draper, 

1  Duke  v.  Great  Western  Rw.  Co.,  14  U.  C.  Q.  B.  377. 

2  Standish  v.  Narragansett  St.  Co.,  Ill  Mass.  512. 
s  12  U.  C.  C.  P.  89. 


TICKETS. 


C.  J.,  remarked  that  he  supposed  that  a  man  who 
produced  no  ticket,  but  asserted  that  he  had  paid 
his  fare  and  had  lost  his  ticket  and  therefore  de 
clined  to  pay  again,  would  —  though  a  by-stander 
corroborated  the  assertion—  be  deemed  refusing 
to  pay,  within  the  meaning  of  the  Acts." 

"  I  do  not  see  what  the  Acts  have  to  do  with  it. 
I  never  saw  anything  about  such  things  in  the 
Acts,"  said  the  lady,  getting  rather  puzzled  over 
the  matter. 

"  What,  madam,  do  you  read  such  things  ?  I 
should  have  imagined  that  a  fair  creature  like 
yourself  would  have  found  them  too  dry  to  read." 

"  No  sir  ;  I  am  a  member  of  the  association  of 
the  Church  of  the  New  Jerusalem,  and  I  read  the 
Acts  of  the  Apostles  as  well  as  every  other  part  of 
the  Bible,"  eagerly  responded  the  lady. 

Amid  broad  smiles,  giggling  he-hes,  hearty  ha- 
has,  guffawing  ho-hos,  the  Q.  C.  hastened  to  ex 
plain. 

"  Oh,  my  dear  madam,  I  meant  no  allusion  to 
Holy  Writ  ;  I  meant  31  Vic.,  chapter  68,  commonly 
called  the  Railway  Act  of  1868,  which  says  at  sec 
tion  20  :  "  Any  passenger  refusing  to  pay  the  fare, 
may  by  the  conductor  of  the  train  and  the  servants 
the  company  be  put  off  the  cars,  with  his  lug 
gage,  at  any  usual  stopping-place,  or  near  any 
dwelling-house,  as  the  conductor  elects,  the  con 
ductor  first  stopping  the  train  and  using  no  un 
necessary  force." 


120  PRODUCING    TICKETS,    OR    EVICTION. 


CHAPTER   IX. 

PRODUCING   TICKETS,   OR   EVICTION. 

Carried  past. — Jumping  off.  —  Junctions. — Cave  Canem. — Con 
ductors  refusing  Change.  —  Fighting  in  the  Cars.  —  Conduct  of 
Passengers.  —  Ladies'  Car.  —  Turned  out  in  the  Dark.  —  No  Seats. 
— Colored  Persons. — Tickets  lost  and  found  too  late.  — Conduc 
tor's  Conduct.  —  Damages  for  Wrongful  Ejectment.  —  Go  quietl}'. 

—  Companies  heavily  Mulcted.  —  By-law  as   to  producing  Tickets. 

—  A  Lover,  his  Mark.  — Getting  off  for  a  Moment. 

FORTUNATELY  for  my  friend  the  attention  of 
our  fellow  travellers  was  drawn  away  from  him 
by  the  language,  more  forcible  than  elegant,  of  a 
man  who  had  been  carried  past  a  small  way-sta 
tion  at  which  he  desired  to  alight,  and  for  which 
he  had  a  ticket.  He  vowed  vengeance  against 
the  company  because  the  train  was  not  stopped 
and  a  reasonable  opportunity  given  him  to  alight, 
and  threatened  loudly  to  sue  the  company  for  the 
damage  which,  he  said,  he  would  inevitably  sus 
tain  through  his  non-delivery  at  his  destination. 
And  no  doubt  he  would  be  successful,  judging  from 
authorities,  in  recovering  compensation  for  the  in 
convenience,  loss  of  time,  and  the  labor  of  travel 
ling  back  to  the  haven  where  he  would  be,  because 
these  are  the  direct  consequences  of  the  wrong 
done  him.1  One  Hobbs,  and  Betsy  his  wife,  with 

i  Damont  v.  N.  0.  &  C.  Rw.,  9  Lou.  Ann.  441 ;  111.  C.  Rw.  v.  Able,  69  111. 
131 ;  Rcdficld  on  Railways,  vol.  ii.,  276. 


PRODUCING    TICKETS,    OK    EVICTION.  121 

two  juveniles,  once  took  a  midnight  train  home 
ward  bound ;  they  were  landed,  however,  at 
another  village,  some  miles  off  from  their  house ; 
it  was  so  late  that  they  could  neither  get  a  con 
veyance,  nor  yet  accommodation  at  an  inn,  and 
so  all  had  to  walk  home  through  a  drizzling 
rain.  Betsy  took  cold  and  was  laid  up  for  some 
time,  and  the  jury  gave  a  verdict  of  X28  in  their 
favor ;  .£8  for  the  personal  inconvenience,  the 
balance  for  the  wife's  illness  and  its  consequences. 
The  court  considered  that  Hobbs  was  entitled  to 
the  <£8,  but  not  to  the  rest,  the  sickness  being  too 
remote  a  consequence  of  the  breach  of  contract.1 
This  was  in  England,  but  in  Mississippi  where  a 
man,  subject  to  rheumatism,  got  carried  past  his 
station  and  had  to  walk  back  in  the  rain,  where 
upon  his  old  enemy  attacked  him,  it  was  decided 
that  he  might  get  satisfaction  out  of  the  company.2 
The  ticket  must  always  be  taken  to  be  the  con 
tract  between  the  passenger  and  the  company  for 
the  special  purpose,  and  upon  the  terms  which 
are  contained  in  it,3  and  when  the  company  has 
issued  a  ticket  to  a  particular  place  they  are  bound 
to  stop  there,  and  it  is  not  enough  merely  to  slacken 
off  steam  ; 4  but,  without  special  agreement,  one 
cannot  insist  upon  a  train  stopping  at  a  place 
where  they  do  not  usually  delay."  5 

Hobbs  v.  L.  &  S.  W.  Rw.,  L.  R.,  10  Q.  B.  111. 
Mobile,  etc.,  Rw.  v.  McArthur,  43  Miss.  180. 
Farewell  v.  G.  T.  R.,  15  U.  C.  C.  P.  427. 
Georgia  Rw.  v.  McOurdy,  45  Ga.  288. 
Chicago,  etc.,  Rw.  v.  Randolph,  53  111.  510 


122  PRODUCING    TICKETS,    OR    KVICTION. 

Somebody  —  not  a  Solomon  —  asked  the  man 
why  he  had  not  jumped  off;  he  sensibly  —  con 
sidering  he  was  in  a  passion  —  replied :  — 

"If  I  had  been  so  foolhardy  as  to  jump  off 
while  the  train  was  in  motion,  without  doubt, 
many  a  court  in  the  land  would  hold  that  I  did  it 
at  my  own  risk,  and,  if  hurt,  could  coolly  tell  me 
that  for  my  gross  imprudence  I  had  nobody  but 
myself  to  blame,1  if,  however,  they  had  stopped 
but  for  a  moment,  I  would  have  run  the  risk  of 
being  injured  by  their  starting  before  I  was  quite 
off,  for  then  they  would  have  been  liable,2  and  I 
would  have  done  so  if  the  train  had  been  moving 
slowly."  3 

"  But,"  said  my  legal  luminary  to  me,  sotto-voce 
—  for  he  was  afraid  to  draw  attention  to  himself 
again  —  "if  a  passenger  is  induced  to  leap  from  a 
car  under  the  influence  of  a  well-grounded  fear  of 
a  collision  that  would  be  fatal  to  limb  or  life,  it 
seems  to  be  regarded  as  well  settled  that  he  may 
recover  against  the  carriers,  even  though  he  would 
not  have  been  hurt  in  the  slightest  degree,  had  lie 
philosophically  remained  quiet."  4 

Another  man  wanted  the  conductor  to  stop  the 
train  because  he  had  just  discovered  that  he  was 
on  the  wrong  track ;  but  this  favor  was  refused, 

1  Damont  v.  N.  0.  &  C.  R\v.  9  Lou.  Ann.  441;  Lucas  v.  T.  &  N.  B.  B\v.,  6 
Gray,  64 ;  but  see  111.  0.  R\v.  v.  Able,  59  111.  131. 

2  Penn.  Rw.  r.  Kilgore,  32  Penn.  St.  292. 

a  Filer  v.  N.  Y.  C.,  49  N.  Y.  47 ;  Loyd   v.  Hannibal,  etc.,  R\v  ,  53  Mo.  509. 
«  Ingalls  t\  Bills,  9  Met.  1 :  EldrHgc  f.  Long  Is.  Rw  ,  iSandf.  89;  Rw.  « 
Aspell,  23  Penn.  St.  147. 


PRODUCING    TICKETS,    OR    EVICTION.  123 

and  the  stupid  fellow  had  to  pay  the  full  fare  to 
the  next  stopping-place.1 

By  this  time  we  had  reached  the  Junction,  and 
friend  Smith  and  myself  and  several  other  persons 
got  out  to  take  the  cars  of  the  one  or  the  other 
of  the  two  other  companies  whose  lines  here  cross. 
The  stations  of  the  three  companies  are  all  open 
to  each  other,  and  the  passengers  of  each  pass 
directly  from  the  one  to  the  other,  "  no  pent  up 
Utica  contracts  their  powers"  of  pedestrianism, 
the  whole  area  being  used  as  common  ground  by 
the  travellers  on  all  three  roads.  While  here,  a 
porter  of  the  B.  and  E.  Co.,  who  was  trundling  a 
track  laden  high  with  luggage,  let  a  portmanteau 
fall  off  and  injure  the  toes  of  one  of  our  fellow- 
travellers  who  was  on  the  part  of  the  platform 
owned  by  the  B.  and  E.  Rw.  Co.  on  his  way  to 
the  terminus  of  the  other  line.  (I  afterwards 
heard  that  the  court  held  that  the  negligence  be 
ing  an  act  of  misfeasance  by  the  servant  of  the 
company  in  the  course  of  his  employment,  the 
maxim  respondeat  superior  applied,  and  that  the 
company  were  liable ;  but  the  judges  doubted 
whether  the  railway  would  have  been  responsible 
supposing  the  man  had  been  injured  from  the 
state  and  condition  of  the  platform,  as  he  had  no 
business  on  it.)2 

As  I  was  trudging  along  an  ugly  dog  of  the  cur 

1  Columbus,  etc.,  Rw.  v.  Powell,  40  Ind.  37. 

2  Tebbutt  v.  Bristol  &  Ex.  R.  Co.,  L.  R.,6  Q  B.  73  ;  Stiles    v  Cardiff  Steam 
Nav.  Co.,  33  L.  J.  (N   S.),  Q.  B.  310 


124  PRODUCING    TICKETS,    OR    EVICTION. 

tribe,  with  a  noli  me  tangere  expression  of  coun 
tenance,  dashed  past  me  and  rushed  up  to  an  inno 
cent-looking  individual,  seizing  him  violently  by 
the  posterior  part  of  the  most  indispensable  portion 
of  a  man's  attire,  and  judging  from  the  row  the 
fellow  kicked  up,  by  something  more  sensitive 
than  pantaloons  as  well :  shaking  vigorously,  the 
dog  detached  a  piece  of  cloth  and  drew  a  little 
blood.  The  victim  had  a  heavy  stick  in  his  hand, 
and  the  little  doggy's  lively  career  was  stopped 
then  and  there.  I  remarked  to  the  man,  "  My 
friend,  if  you  find  out  that  that  unfortunate  puppy 
belonged  to  the  company  or  to  any  of  their  ser 
vants,  sue  them  for  damages ;  if  not,  don't  trouble 
yourself  to  do  so  unless  you  can  show  that  they 
were  able  to  dispose  of  the  fractious  animal  and 
did  not  do  it."  1 

Shortly  after  we  were  again  under  way  a  little 
excitement  was  occasioned  by  an  altercation  be 
tween  the  conductor  and  a  man  who  had  not  fully 
made  up  his  mind  (whether  owing  to  the  magni 
tude  or  insignificance  thereof,  we  cannot  say)  how 
far  he  intended  to  ride,  and  so  did  not  wish  to 
settle  for  the  present.  The  strife  of  tongues  waxed 
warm,  and  the  sound  of  the  conflict  rose  high  above 
the  rattle  and  the  din  of  the  train. 

The  conductor  said  that  if  he  did  not  at  once 
pay  the  fare  to  some  place  or  other  he  would  have 

i  Smith  v.  Great  Eastern  Rw. ,  L.  R  ,  2  C.  P.  4  ;  Barrett  v.  Maiden  &  Melrose 
Rw.,  3  Allen,  101. 


PRODUCING   TICKETS,    OR    EVICTION.  125 

the  pleasure  of  walking  there.  The  man  still  hes 
itated,  so  the  official  pulled  the  check-rope,  and  011 
the  stoppage  of  the  train  proceeded  to  eject  the 
traveller,  who  at  the  last  moment  tendered  a  $20 
gold  piece,  and  told  the  conductor  to  take  the  fare 
to  the  next  station  (some  $1.35).  The  latter  de 
clined  now  to  receive  the  money,  and  put  the  man 
off,  leaving  him  alone  in  his  glory,  breathing 
curses  loud  and  deep.1  Doubtless  the  official  was 
justified  in  so  doing,  as  in  a  somewhat  similar  case 
the  court  said  that  even  an  officer  at  a  ticket  office 
might  reasonably  object  to  an  offer  of  a  $20  gold 
piece  to  pay  a  fare  of  |1.35,  on  account  of  the 
trouble  and  risk  involved :  and  that  a  person  rush 
ing  into  the  cars  without  a  ticket  .has  no  reason  to 
expect  that  he  will  find  the  conductor  prepared  to 
change  a  $20  gold  piece,  for  he  relies  upon  receiv 
ing  tickets  from  the  passengers,  or,  if  money  be 
paid  to  him  instead,  he  expects  that  it  will  be  paid 
with  reasonable  regard  to  what  is  convenient  under 
the  circumstances.2 

I  may  as  well  inform  the  general  public  here, 
that  it  is  considered  a  reasonable  condition  for 
railway  companies  to  require  passengers  to  procure 
tickets  before  entering  the  train.8 

My  friend  was  just  beginning  to  dilate  upon  the 
subject  of  ejecting  passengers,  when  his  voice  was 
drowned  by  a  crash,  a  scream,  and  a  general  up- 

1  People  v.  Jillson,  3  Parker  C.  C.  234. 

2  Fulton  v.  Grand  Trunk  Rw.,  17  U.  C.    Q.  B.  433. 

3  Hurst  v.  G.  W.  R.,  19  C.  B.  (N.  S.)  310. 


126  PRODUCING    TICKETS,    OR    EVICTION. 

rising  of  our  fellow-travellers.  I  verily  thought 
within  myself  that  there  was  a  collision  —  that  we 
were  off  the  track  —  that  —  that  —  that,  I  don't 
know  what  I  did  not  think  in  the  few  moments 
that  elapsed  before  I  saw  that  it  was  only  a  fight 
between  some  men  who  had  been  indulging  deeply 
in  that  cup  which  inebriates  and  brutalizes  as  well 
as  cheers.  The  conductor  soon  arrived  and  quelled 
the  disturbance.  In  this  case,  fortunately,  it  was 
not  necessary  —  as  it  may  sometimes  be  —  for  him 
to  stop  the  train,  call  to  his  aid  the  engineer,  the 
firemen,  brakesmen  and  bellicose  passengers,  and 
leading  the  way  himself  --  like  some  valiant 
knight  of  the  Middle  Ages  —  expel  the  disturbers 
of  the  peace,  or  else  show  by  an  earnest  experi 
ment  that  to  do  so  was  impossible.1  If  this  latter 
contingency  were  to  happen,  the  conductor  must 
either  discontinue  the  trip,  or  give  the  other  pas 
sengers  an  opportunity  of  leaving  the  cars ;  other 
wise  the  company  will  be  responsible  for  the  acts 
of  the  rioters.2  A  conductor  is  not  bound  to  wait 
until  some  act  of  violence,  profaneness,  or  other 
misconduct  has  been  committed  before  exercising 
the  power  reposed  in  him  of  excluding  or  expelling 
offenders.3  Of  course  he  is  never  bound  to  receive 
passengers  who  will  not  conform  to  reasonable  reg 
ulations,  or  who  from  their  behavior,  state  of 

1  Pittsburgh,  F.  W.,  etc.,  Rw.  v.  Hinds,  7  Am.  Reg.  (N.  S.)  14  ;  .S.  C.,  53  Pa. 
St.  612. 

2  Redfield  on  Railways,vol.  ii.,  p.  234. 

3  Vinton  v.  Middlesex  Rw.,  11  Allen,  306. 


PRODUCING    TICKETS,    OR    EVICTION.  127 

health  or  person,  are  offensive  to  the  other  travel 
lers.1 

Carriers  of  passengers  are  just  as  responsible  for 
the  misconduct  of  their  living  freight  as  they  are 
for  the  mismanagement  of  the  train.  They  must 
exercise  the  utmost  vigilance  in  maintaining  order 
—  that  first  of  Heaven's  laws  —  and  in  guarding 
passengers  against  violence  ;  or  if  not,  they  must 
pay  for  the  consequences.  In  one  case,  they  had 
to  pay  for  the  eye  which  a  passenger  lost,  through 
the  quarrel  of  some  drunken  men.2  In  another, 
for  an  arm  broken  in  a  shindy  between  votaries  of 
Bacchus.3  All  disorderly  and  indecent  conduct  is 
to  be  repressed,  and  those  sons  of  Belial  who  are 
guilty  thereof  must  be  excommunicated,  or  ex 
pelled,  with  Puritanic  severity.4  No  one  should 
be  permitted  to  travel  in  a  car,  who  so  demeans 
himself  as  to  endanger  the  safety,  or  interfere  with 
the  reasonable  comfort  and  convenience  of  other 
passengers.  But  a  wolf  in  sheep's  clothing,  a 
whited  sepulchre,  a  serpent  disguised  as  an  angel 
of  light,  cannot  be  refused  transport ;  nor  need  a 
conductor  remove  a  too-far-gone  dissenter  from  the 
principles  of  J.  B.  Gough,  if  he  is  neither  disorderly 
nor  offensive,  nor  if  he  remains  quiet  after  admon 
ition.  If  there  is  nothing  in  the  condition,  con 
duct,  appearance,  or  manner  of  a  passenger,  from 

1  Hodges  on  Railways,  553;  6th  edit.,  585. 

2  Pittsburgh,  etc.,  v.  Pillow,  7  Leg.  Gaz.  13 ;  Sup.  Ct   Pa. 

s  Pittsburgh,  F.  W.,  etc.,  Rw.  v.  Hinds,  7  Am.  Reg.  (N.  S.)  14  ;   S.  C.,  53  Pa. 
St.  512. 
*  Flint  v.  Norwich,  etc.,  Transportation  Co.,  34  Conn.  554. 


128  PRODUCING    TICKETS,    OR    EVICTION. 

which  it  can  reasonably  be  inferred  that  he  means 
mischief,  the  company  will  not  be  liable  for  any 
sudden  attack  he  may  make  upon  another  pas 
senger.1 

Where  the  'company  issue  excursion  tickets, 
stipulating  to  run  trains  in  a  particular  manner, 
they  cannot  excuse  themselves,  by  showing  that 
the  carriages  are  all  filled.2  In  England,  in  ordi 
nary  cases,  the  ticket  is  issued  subject  to  the  con 
dition  that  there  is  room  in  the  train  ;  otherwise 
those  who  are  booked  for  the  greatest  distance 
have  the  preference.3  And  a  carriage  must  not  be 
suffered  to  become,  or  at  least  to  continue  over 
crowded.4  A  considerable  discussion  has  taken 
place  in  some  of  the  States  of  the  Republic  as  to 
how  far  railway  companies  can  require  colored 
persons  to  sit  in  a  particular  place  or  car.  The 
right  to  do  so  was  maintained  by  the  Supreme 
Court  of  Pennsylvania,5  but  other  tribunals  have 
denied  it.  In  Illinois  it  was  decided  that  a  com 
pany  could  not  from  caprice,  wantonness,  or  preju 
dice,  exclude  a  black  woman  from  the  ladies'  car 
on  account  of  her  negro  blood  ;  although  it  might 
not  be  an  unreasonable  rule  to  require  colored 
persons  to  occupy  seats  in  a  separate  car,  furnished 
as  comfortably  as  the  others.6 

Putnam  v.  Broadway,  etc.,  Rw.,  56  N.  Y.  108. 
Patteson,  J.,  in  Hawcroft  v.  G.  N.  R.,  16  Jur.  196. 
Hodges  on  Railways,  553. 

Jackson  v.  Metropolitan  Rw.,  L.  R.,  10  C.  P.  49. 
Westchester  Rw.  v.  Miles,  55  Penn.  St.  209. 
Chicago  &  N.  W.  v.  Williams,  55  111.  185. 


PRODUCING    TICKETS,    OR    EVICTION.  129 

The  duties  of  common  carriers  include  the  doing 
of  everything  calculated  to  render  the  transporta 
tion  most  comfortable  and  least  annoying  to  pas 
sengers.1  Their  contract  with  their  patrons  is  a 
stipulation  for  respectful  treatment,  that  decency 
of  demeanor  which  constitutes  the  charm  of  social 
life,  that  attention  which  mitigates  evils  without 
reluctance,  and  that  promptitude  which  adminis 
ters  aid  to  distress.  And  in  respect  to  women  it 
proceeds  still  further ;  it  includes  an  implied  stip 
ulation  against  general  obscenity,  that  immodesty 
of  approach  which  borders  on  lasciviousness,  and 
against  that  wanton  disregard  of  the  feelings  which 
aggravates  every  evil.2 

As  men  of  all  sorts  and  conditions  are  so  con 
stantly  travelling  on  trains,  it  is  not  only  a  reason 
able  regulation,  but  almost  a  humane  duty,  to 
have  on  every  train  a  ladies'  car  for  women  and 
men  accompanying  them,  from  which  creatures 
wearing  exposed  bifurcated  garments,  unblessed  by 
the  companionship  of  the  fair  sex,  and  women  of 
offensive  habits  and  character  may  be  excluded, 
so  that  all  the  good  ladies  maybe  together  as  they 
will  be  in  heaven.3  And  even  though  persons  not 
admissible  under  the  letter  of  the  regulation  are 
occasionally  permitted  within  the  charmed  pre 
cincts  the  rule  is  still  binding,  and  a  male  in  trow- 
sers  has  no  right  to  enter  without  license  or  reason- 

i  Day  v.  Owen,  5  Mich.  520. 

*  Chamberlain  v.  Chandler,  3  Mason,  242 ;  Nieto  v.  Clark,  1  Clifford,  145. 
3  Bass  v.  C.  &  N.  W.  llw.,  36  Wis.  450. 
W.  &R.  OFT.—  9 


130  PRODUCING    TICKETS,    OR    EVICTION. 

able  excuse.  If  passengers  excluded,  by  regula 
tions,  from  the  ladies'  car  cannot  find  seats  in  the 
regular  coaches  and  there  is  room  in  the  privi 
leged  place,  they  must  not  be  kept  standing  ;  but 
it  is  the  officers  of  the  train  who  must  determine 
who  shall,  or  who  shall  not,  be  allowed  to  enter 
the  presence  of  the  ladies ;  one  has  no  right  to 
enter  or  attempt  an  entrance  by  force.  If  one  be 
ing  unable  to  find  a  seat  elsewhere  go  peaceably 
into  the  ladies'  car  without  being  forbidden,  he 
cannot  then  be  removed  by  violence,  unless  a  seat- 
in  another  carriage  is  offered  to  him  and  he  re 
fuses  to  move.  But  under  no  circumstances  will  a 
brakesman  be  authorized  in  forcibly  ejecting  such 
an  intruder  by  throwing  him  on  to  the  platform 
while  the  train  is  crossing  a  river.  A  man  is  not 
bound  to  stay  in  a  smoking-car.1 

It  is  said  to  have  been  held  by  some  court,  in  a 
case  of  Toland  against  The  Hudsoji  River  Rail 
way,  that  a  passenger  who  is  not  provided  with  a 
seat  is  not  obliged  to  pay  any  fare,  and  if  expelled 
from  the  cars  for  refusing  such  payment  may  sus 
tain  an  action  against  the  company.  But  this 
doctrine  must  be  taken  cum  grano  salis.  If  a 
passenger  is  not  accommodated  as  he  should  be,  he 
may  decline  any  compromise,  and  sue  the  com 
pany  for  refusing  to  carry  him  as  their  contract 
by  the  ticket  or  their  duty  required ;  and  he 
doubtless  will  succeed  unless  the  company  prove 

i  Bass  v.  Chicago  &  N.  W.  Rw.,  36  Wis.  450. 


PRODUCING    TICKETS,    OR    EVICTION.  131 

some  just  excuse.  But  if  one  chooses  to  accept  a 
passage  without  a  seat,  the  general  understanding 
undoubtedly  is  that  he  must  pay.  If,  however,  he 
goes  upon  the  cars  expecting  proper  accommoda 
tion,  and  is  put  off  because  he  declines  going  with 
out,  he  may  still  sue.1  So  much  by  way  of  par 
enthesis  and  digression. 

"  Well,  what  have  you  got  to  say  about  eject 
ment  ?  "  I  asked  my  chum. 

"  Oh,  that  it  is  deuced  hard  that  every  dun 
derhead  of  a  conductor  may  put  a  poor  wayfar 
ing-man  off,  even  at  the  noon  of  night,  near  any 
dwelling-house  he  may  choose.  In  one  case  the 
night  was  dark  and  cloudy ;  from  where  the 
ejected  man  was  placed,  the  lights  of  the  last  sta 
tion  were  visible,  although  no  house  was  nigh, 
yet  the  court  held  that  the  servants  of  the  com 
pany  had  not  exceeded  their  authority.2  The  law 
in  some  States  is  that  one  can  only  be  put  out 
at  a  station."  3 

"  How  would  it  be,  old  boy,  if  the  poor  wretch 
was  short-sighted  ?  "  I  inquired. 

"  That  defect  in  one's  optics  would  impose  no 
additional  obligation  on  the  company  ;  at  least  so 
it  would  appear  from  the  authorities."4 

"  What  would  be  the  consequences  if  a  fellow 

1  Redfield  on  Railways,  vol.  ii.,  p.  282  ;  but  see  Davis  v.  Kansas  City  Rw.,  63 
Mo.  317. 

2  Fulton  v.  G.  T.  R.,  17  U.  C.   Q.  B.  433. 

8  Toledo,  P.,  &  VV.  Rw.  v.  Patterson,  63  111.  304. 
*  Bridges  v.  N.  London  Rw.,  L.  R.,  6  Q.  B.  377. 


132  PRODUCING    TICKETS,    OR    EVICTION. 

was  to  mislay  his  ticket,  and  find  it  again  after 
he  had  been  ignominiously  expelled;  could  he 
recover  against  the  company  ?  " 

"  I  remember  where  one  Curtis  was  travelling 
between  St.  Mary's  and  London,  and  had  put  his 
ticket  away  so  safely  —  lest  he  should  lose  it  — 
that  he  could  not  find   it.     The  conductor  called 
upon  him  to  produce  it ;  in  vain  Curtis  ransacked 
pocket  after  pocket  in  coat,  waistcoat,  and  trowsers, 
pulling  out  papers,  letters,  newspapers^  wool,  and 
all  that   precious   olio   to   be   found  in   a   man's 
pockets.    The  other  travellers  were  greatly  edified 
and  delighted  at   the  exhibition   of  this  omnium 
gatherum,  and  their  laughs  and  jests  added  not  a 
little  to  the  confusion  of  the  poor  wretch  search 
ing  for  his  little    talismanic  piece  of  pasteboard. 
At  length   the  conductor  stopped  the  train  and 
turned   C.   off,  though   while    being    put    off    he 
offered  to  pay  his  fare.      He  sued  the  company, 
and  got  $300  out  of  them,  the  court  holding  the 
company  liable  for  the  acts  of  their  officers  duly 
authorized  and  styled  (under  the  Act)  conductors, 
when  not  committed  in  excess  of  authority,  which 
in  this  case  had  not  been  overstepped.     The  com 
pany  applied  for  a  new  trial,  but  the    court  de 
clined  to  disturb  the  verdict  (it  being  the  second 
one  recovered  by  Curtis),  although  it  considered 
the  damages  excessive."  l 

"  I  should  think,"  I  remarked,  "  one  ought   to 
be  allowed  a  reasonable  time  to  find  his  ticket." 

i  Curtis  v.  G.  T.  R.,  12  C.  P.  (U.  C.),  89. 


PRODUCING    TICKETS,    OR    EVICTION.  133 

"  Of  course,"  was  the  reply,  "  a  passenger  has 
a  right  to  ride  so  long  as  there  is  a  reasonable 
expectation  of  his  finding  it  during  the  trip.1  A 
conductor  on  a  previous  train  wrongfully  taking 
the  passenger's  ticket  does  not  excuse  the  traveller 
from  producing  it,  when  called  upon  by  another 
conductor  ;  although,  in  such  a  case,  the  company 
would  be  liable  for  the  wrongful  act  of  the  first 
conductor."  2 

"  I  suppose  the  courts  assume  that  the  conduc 
tors  are  the  agents  of  the  company  and  authorized 
to  do  all  legal  acts  for  properly  collecting  the 
tickets,  keeping  order,  running  the  train  and  re 
moving  persons  who  misbehave  or  will  not  pay, 
and  such  ?  "  I  queried. 

"  Yes,"  replied  my  friend,  who  was  suffering 
from  an  acute  attack  of  cacoethes  loquendi,  "  and 
if  in  assuming  to  carry  out  what  he  is  legally 
empowered  to  do,  he  forcibly  removes  from  the 
cars  (without  any  excuse)  a  passenger  who  has 
paid  his  fare,  he  will  be  liable  for  the  assault ;  but 
if  while  being  removed  the  man  should  slip,  fall, 
and  be  injured,  the  company  will  not  be  respon 
sible  for  his  scratches  and  bruises,  or  his  sprains 
and  strains,  such  things  being  the  remote,  and 
not  the  proximate  consequences  of  the  eject 
ment."  ;  Force  may  be  used  to  prevent  one  un- 

1  Maples  v.  N.  Y.  &  N.  H.  Rw.,  38  Conn.  557. 

2  Townsend  v.  N.  Y.  C.,  56  N.  Y.  295 ;  Hamilton  v.  N.  Y.  C.,  51  N.  Y.  100 ;  but 
see  Pittsburgh,  etc.,  v.  Hennigh,  39  Ind.  509  ;  Palmer  v.  Charlotte   etc    Rw 
3  S.  C.  580. 

8  Williamson  v.  G.  T.  R.,  17  C.  P.  (U.  0.),  615. 


134  PRODUCING    TICKETS,    OR    EVICTION. 

lawfully  getting  on  a  train  and  no  liability  be  in- 
curred  for  injuries  ;  but  when  once  a  man  is  fairly 
on  care  must  be  taken  in  removing  him.1  Com 
panies  have  a  right  to  adopt  such  reasonable  reg 
ulations  as  are  necessary  for  their  security,  and 
if  they  are  not  complied  with  by  the  passengers, 
not  only  may  the  railroad  refuse  them  admission 
to  the  cars,  but  if  they  are  already  within  they 
may  remove  them  ; 2  and  in  the  enforcement  of 
order,  and  in  the  execution  of  reasonable  regula 
tions  for  the  safety  and  comfort  of  passengers  and 
for  the  security  of  the  train,  the  authority  of  the 
officer  in  charge  must  be  obeyed."  3 

"  Suppose  a  man  suffered  serious  detriment  to 
his  business  by  being  wrongfully  turned  out  of  the 
cars,  could  he  recover  for  such  losses  ?  "  I  asked. 

"  It  has  been  so  considered  in  the  great  Re 
public,  if  he  declares  specially  in  regard  to  them.4 
But  it  has  been  held  —  and  I  think  rightly  —  that 
one  cannot  get  vindictive  or  punitive  damages 
against  a  company,  unless  they  expressly  or  im- 
pliedly  participate  in  the  wrongful  action  by  au 
thorizing  it  beforehand  or  approving  of  it  after 
wards  ;  5  or  the  case  be  one  of  gross  negligence  or 
wilful  misconduct."  6 

1  Kline  v.  Cent.  Pac.  Rw.,  37  Cal.  400. 

2  Stephen  r.  Smith,  29  Vt.  160. 

3  Bass  v.  C.  &  N.  W.  Rw.,  36  Wis.  463. 
*  Holmes  v.  Doane,  3  Gray,  328, 

5  Hagan  v.  Providence  &  W.  Rw.,  3  Rhode  Island,  88. 

6  Bannon  c.  Baltimore  &  0.  R.  R..  24  Md.  108 ;  Baltimore  &  0.  B.  R.  T. 
State,  Ib.  271. 


PRODUCING   TICKETS,    OR    EVICTION. 

"  What  is  it,  then,  exactly,  that  a  man  can  get 
for  being  with  indignity  and  insolence  hustled  out 
of  a  train,  amid  the  laughs  and  jeers  of  the  vul 
gar  and  the  sneers  of  the  polite  ?  ' 

"  Damages  for  actual  injury,  loss  of  time,  pain 
of  body,  money  paid  to  the  doctor,  or  for  injuries 
to  the  wounded  feelings  of  the  evicted  one,  may 
be  allowed.1  One  man  got  $1,150  for  being  put 
off,  when  sick,  away  from  a  station." 

"  Suppose  one  was  killed,  and  sent  off  unpre 
pared  to  the  happy  hunting  grounds  of  his  fath 
ers?  "  I  queried. 

"  Then  the  company  would  be  liable  under 
Lord  Campbell's  Act,"  3  answered  my  Nestor. 

"  I  presume,"  I  continued,  still  indulging  my 
unquenchable  thirst  for  knowledge,  "  that  when  a 
conductor  gets  into  his  cranium  the  idea  that  it  is 
the  proper  thing  to  put  one  off,  the  best  plan  is 
quietly  to  submit  to  the  inscrutable  and  go  ?  " 

"  Undoubtedly —  spoken  like  a  veritable  Solon. 
In  such  an  evil  case  it  will  be  wise  and  prudent 
to  gather  together  one's  surroundings  and  belong 
ings,  and  peaceably  succumb  to  the  powers  that 
be,  for  if  you  leave  any  articles  behind  you,  you 
cannot  recover  their  value,  unless  you  can  show 
that  the  company  got  them,  or  that  the  violence 
or  suddenness  of  your  ejection  rendered  it  impossi 
ble  for  you  to  take  them  with  you  and  so  they 

1  Hagan  v.  Prov.  &  W.  Rw.,  3  Rhode  Island,  88. 

2  111.,  etc.,  Rw.  t- .  Button,  58  111.  397. 

3  Penn.  Rw.  Co.  v .  Vandiver,  42  Penn.  St.  365. 


136  PRODUCING    TICKETS,    OK   EVICTION. 

were  lost.  This  point  Mr.  Glover  had  the  pleas 
ure  of  settling.  He  was  trying  to  do  the  London 
and  Southwestern  by  giving  half  his  ticket  to  a 
friend  to  save  expenses,  and  when  put  out  of  the 
cars  left  a  pair  of  glasses  behind  him,  and  the 
court  told  him  that  he  had  only  himself  to  blame 
for  the  loss.1  The  courts  never  like  the  idea  of 
mulcting  railway  companies  in  heavy  damages  for 
the  sins  of  commission  of  their  servants  and  con 
ductors;  and  so  where  a  verdict  of  X50  was  given 
against  the  G.  W.  R.  because  the  conductor  put 
the  plaintiff  off  the  train,  though  the  inconven 
ience  to  him  was  a  mere  bagatelle  and  the  con 
ductor  had  acted  bond  fide  under  an  impression 
that  the  fare  had  not  been  paid,  and  had  used  no 
harshness  or  violence,  a  new  trial  was  granted  on 
the  ground  of  excessive  damages.,  and  the  Chief 
Justice  stigmatized  the  verdict  as  '  outrageous : ' 
but  there  the  jurors  of  our  Lady  the  Queen  and 
my  lord  differed ;  and  so  on  the  second  trial  the 
yeomen  of  the  county  gave  the  man  only  <£5  less, 
and  the  company  submitted.2  And  in  another 
case  the  same  Canadian  court  spoke  regretfully  of 
the  exorbitant  amount  of  damages  (<£50)  where 
the  company  were  not  otherwise  concerned  than 
through  the  act  of  their  conductor,  who  thought 
that  he  had  only  been  doing  his  duty,  as  England 
expects  every  man  to  do.3  And  where  an  Ameri- 

1  GloTer  v.  London  &  S.  W.  Rw.,  3  Q.  B.  25. 

2  Huntsman  v.  G.  W.  R.,  20   U.  0-    Q.  B.  24. 

s  Davis  v.  G.  W.  R.,  20  U.  C.   Q.  B.  27,  and  Life  of  Lord  Nelson. 


PRODUCING    TICKETS,    OR    EVICTION.  137 

can  jury  gave  $1,000,  no  special  damage  being 
shown,  a  new  trial  was  granted." 

"  To  return  to  the  question  of  tickets."  I  said, 
"  I  saw  an  English  decision  the  other  day,  which 
shows  how  one  may  save  a  little  in  going  to  an 
intermediate  place,  where  opposition  lines  are 
running  to  some  place  beyond." 

"  How  is  that  ?  "  was  asked. 

"  Why,  often  if  two  lines  run  to  B.  or  there  is 
an  excursion  thither,  the  fare  is  cheaper  than  to 
A.,  which,  perhaps,  is  not  half  the  distance,  and 
one  can  buy  a  ticket  to  B.  and  get  off  at  A.  if  he 
so  wishes." 

"  Would  that  be  a  safe  dodge  ?  " 

"  It  appears  to  have  been  decided  in  England 
that  one  may  pay  his  fare  to  one  place,  and  yet 
leave  the  cars  at  some  intermediate  place  where 
the  train  stops,  although  the  fare  to  the  latter 
place  may  be  greater  than  it  is  to  the  former."  2 

"I  saw  another  rather  funny  decision.  By  a 
by-law,  passengers  not  delivering  up  their  tickets 
when  required  were  made  liable  to  a  penalty  ;  a 
man  took  a  return  ticket,  yet  after  returning  to 
the  place  whence  he  started,  did  not  get  off  but 
went  on  to  a  further  station,  without,  however,  any 
intention  to  defraud  ;  it  was  held  that  he  could 
not  be  convicted  under  the  by-law,  for  it  only  ap- 


1  Crocker  v.  New  London,  Will.,  &  Pat.  Rw.,  24  Conn.  249. 

2  The  Queen  v.  Frere,  4  E.  &  B.  698  ;   Moore   v.  Metropolitan  Rw.,  8 
Q.  B.  36. 


138  PRODUCING    TICKETS,    OR    EVICTION. 

plied  to  the  case  of  a  person  wilfully  refusing  to 
show  his  ticket  when  he  had  one,  while  here  the 
man  had  none !  It  was  held,  also,  that  the  by 
law  only  applied  to  people  travelling  minus  a 
ticket  with  intent  to  defraud.1  Where  a  gentle 
man  took  tickets  for  himself  and  three  servants, 
keeping  the  tickets  in  his  own  custody  and  tell 
ing  the  guard  that  he  had  them,  and  the  servants 
were  permitted  to  enter  the  car  without  having  or 
showing  each  his  ticket,  the  court  held  that  the 
company  were  estopped  from  raising  the  objection 
that  the  by-law  as  to  the  production  and  delivery 
up  of  tickets  had  been  infringed."  2 

44 1  believe,"  I  remarked,  when  a  pause  enabled 
me  to  squeeze  in  a  remark,  '4  a  company  if  it 
chooses  may  allow  a  discount  off  tickets  bought 
before  entering  the  cars ;  but  that  those  who  enter 
without  their  magic  scraps  of  card- board  cannot 
claim  such  indulgence,3  even  though  they  have 
been  prevented  purchasing  them  from  the  fact  of 
the  office  being  closed.4  Although,  I  believe,  it 
has  been  held  by  some  courts  that  the  increased 
rate  cannot  be  collected  unless  every  proper  and 
reasonable  facility  has  been  afforded  for  procuring 
tickets  at  the  station  ; 5  and  that  if  a  man,  without 

1  Dearden  v.  Townsend,  12  Jur.  (N.  S.),  120 ;  35  L.  J.  Q.  B.  (N.  S.),  98. 

2  Jennings  v.  G.  N.  R.,  1  L.  R.  Q.  B   7. 

s  The  State  v.  Goold,  53  Maine,  279  ;  Chicago  and  Alton  Rw.  v.  Roberts,  40 
111.  503. 

*  Crocker  v.  New  London,  Will.,  &  Pat.  Rw.,  24  Conn.  249. 
B  St.  Louis,  etc.,  Rw.  v.  Dalby,  19  111.  353. 


PRODUCING    TICKETS,    OR    EVICTION. 


139 


any  default  on  his  part,  is  prevented  getting  a 
ticket,  he  may  pay  the  conductor  the  excess  of 
fare  under  protest,  and  recover  it  back  by  suit,  or 
else  he  may  insist  upon  being  taken  at  ticket  rate, 
and  sue  for  damages  if  the  company  refuse." 

"  I  see  that  in  England  some  companies  have  a 
by-law  that  if  a  passenger  loses  his  ticket  he  shall 
be  liable  to  pay  the  full  fare  from  the  most  distant 
place  on  the  line."  j 

'  "That 's  rather  hard  lines." 

"  Don't  pun  —  fortunately  they  cannot  enforce 
their  by-law  by  detaining  the  traveller  himself." : 
The   legal    disquisitions  on  railway  companies 
were  suffered  to  subside  for  a  time,  while  the  train 
rattled  on.     I  gazed  about  on  my  companions.    In 
the  seat  in  front  of  me  sat  a  young  couple,  and, 
judging  from  the  orange  blossoms  in  the  bonnet 
of  the  one,  and  the  clean  shave  and  kid  gloves  of 
the  other,  not  many  hours  had  elapsed  since  they 
had  stood  side  by  side  at  Hymen's  altar,  and  now 
they  were  seated  inclining  towards  each  other  like 
the  slanting  sides  of  the  letter  A.     The  male  had 
a  little  piece  of  sticking-plaster  on  his  lower  lip. 
As  I  was  staring  at  the  youthful  couple,  the  train 
dashed  into  a  tunnel  and  all  was  darkness.    I  heard 
a  prolonged  sucking  sound  as  of  a  cow  drawing 
her  hind  foot  out   of  a   mud-hole  — to   quote   a 
western   poet  of   renown  —  and  when  again    we 


Jeffersonville,  etc.,  Rw.  v.  Rogers,  28  Ind.  1. 
Chilton  v.  L.  &  C.  Rw.,  16  M.  &  W.  212. 


140  PRODUCING   TICKETS,    OR    EVICTION. 

emerged  into  the  daylight,  ho  !  presto  !  the  plaster 
was  reposing  securely  on  the  ruby  lip  of  the 
orange-bonneted  one;  all  else  was  serene  and 
tranquil,  and  the  two  looked  childlike  and  bland. 
How  was  £his  ?  here  was  a  mystery  as  interesting 
as  any  involved  in  railway  law.  I  meditated 
deeply  on  the  point  until  I  recollected  what  in  our 
ante-nuptial  days  my  Elizabeth  and  myself  were 
wont  to  do  ;  then  all  became  clear  and  plain. 

"  Had  a  sleep,  have  you  ?  "  I  said  to  my  friend, 
who  had  been  silent  an  hour  and  was  now  yawn- 
ingly  stretching  himself. 

"  A  sleep  ?  oh  I  no !  not  even  a  cat-nap,  scarcely 
worthy  of  the  name  of  a  kitten-nap,"  was  the 
reply. 

"  Humph !  rather  a  long  kitten  !  twenty  miles 
or  so ! " 

We  stopped  at  a  small  wayside  station  for  a 
few  minutes  while  the  engine  took  a  draught  of 
water  ;  a  gentleman  got  out  to  take  a  breath  of 
air  or  something  of  the  sort,  and  while  he  was 
wandering  up  and  down  the  platform,  off  started 
our  train  without  a  solitary  premonitory  screech, 
leaving  the  individual  wildly  waving  his  arms  and 
frantically  shouting  after  the  hindermost  car.  In 
thus  quietly  slipping  off,  the  company  were  wrong, 
for  a  traveller  who  alights  temporarily,  but  with 
out  notice,  invitation,  or  objection,  while  the  train 
is  stopping  at  an  intermediate  station,  does  no  un 
lawful  act,  and  although  for  a  time  he  surrenders 


PRODUCING    TICKETS,    OR    EVICTION.  141 

his  place  and  rights  as  a  passenger,  he  may  re 
sume  them  again  before  the  train  starts,  and  the 
officers  of  the  railway  are  bound  to  give  him  rea 
sonable  notice  of  starting,1  and  must  not  steal  off 
silently  like  a  thief  in  the  night.  And  passengers 
have  a  right  to  perambulate  the  platforms  while 
the  train  is  stopping  for  refreshments,  and  the 
firemen  and  stokers  should  not  toss  about  wood  or 
coal  so  as  to  injure  the  travellers.2 

1  State  v.  G.  T.  R.,  4  Am.  Rep.  258  ;  58  Me.  176. 

2  Jefferson ville,  etc.,  Rw.  v.  Riley,  39  Ind.  568. 


142  PLATFORMS    AND    ALIGHTING. 


CHAPTER  X. 
PLATFORMS   AND   ALIGHTING. 

Right  to  Safe  Ingress,  Egress,  and  Regress.  —  Defective  Platforms.  — 
The  Englishman  and  the  C'mum  cat'or.  —  Getting  out  of  Cars.  — 
Train  not  at  Platform.  —  Calling  out  Name  ;  is  it  Invitation  to 
alight  ?  —  Ladies  jumping.  —  Hoop-skirts.  — Must  have  Safe  Place 
to  alight.  —  Leaving  Train  in  Motion. 

"  WELL,  here  we  are  at  last  at  H.,"  said  my 
friend  who  was  learned  in  the  law. 

"  Yes,  now  we  have  a  chance  of  getting  some 
grub  (carefully  collated  from  the  plates  of  those 
who  were  here  before  us),  and  taking  the  epider 
mal  covering  off  the  interior  of  our  mouths  with  a 
scalding  decoction  dignified  by  the  name  of  tea," 
I  replied. 

"  Ding-dong-all  gone  —  come  along  —  one-all," 
sounded  forth  the  bell  of  the  refreshment-room,  as 
the  train  drew  up  to  the  platform,  and  all  the 
weary  travellers  sprang  up  eager  to  stretch  their 
limbs  and  to  replenish  the  inner  man.  Out  they 
rushed.  Night  had  thrown  her  sable  mantle  (she 
has  no  other  except  for  moonlight  wear)  over  na 
ture's  tired  bosom,  so  some  of  our  fellow  travellers, 
in  the  gloom,  were  precipitated  into  a  hole  in  the 
platform,  which  the  company  carelessly  suffered 


PLATFORMS    AND    ALIGHTING.  143 

to  be  there  —  yawning  open-mouthed  —  unmind 
ful  of  the  fact  that  passengers  have  the  same  rights 
to  safe  ingress,  egress,  regress,  and  progress  over 
the  stations  and  platforms  at  the  intermediate 
places  where  the  trains  stop  for  refreshment,  as 
they  have  at  the  termini  of  the  line  ; l  although  it 
would  appear  that  where  a  stoppage  is  made  only 
for  the  purposes  of  the  railway,  and  people  are  not 
expected  to  get  in  or  out,  the  rights  of  the  travel 
ling  public  and  the  liability  of  the  company  are 
both  greatly  curtailed.2  As  soon  as  one  procures 
a  ticket  he  is  to  be  regarded  as  a  passenger,  and 
is  entitled  to  a  safe  passage  to  his  seat.3 

Though  the  unfortunates  kissed  mother  earth, 
they  were  not  seriously  damaged  ;  one  indeed  — 
as  a  medical  witness  afterwards  put  it  —  suffered 
"  from  a  severe  contusion  of  the  integuments  under 
the  left  orbit,  with  a  great  extravasation  of  blood 
and  ecchymosis  in  the  surrounding  cellubas,  having 
also  a  considerable  abrasion  of  the  cuticle,"  or,  as 
the  judge  in  common-place  Anglo-Saxon  expressed 
it,  "had  a  black  eye."  Soon  comestibles  of  all 
sorts,  kinds,  and  descriptions  were  vanishing  rap 
idly  by  means  of  down  grades  into  sub- waistcoat 
and  sub-bodice  regions. 

When  we  had  finished  our  repast,  the  train  still 
seemed  quiescent,  —  appeared  as  motionless  as  a 
painted  ship  upon  a  painted  ocean,  —  so  it  was 

1  McDonald  v.  Chicago,  etc.,  26  Iowa,  124. 

2  Frost  t-.  Grand  Trunk  Rw.,  10  Allen,  387. 

3  Warren  v.  Fitchburg  Rw.,  8  Allen,  22T. 


144         PLATFORMS  AND  ALIGHTING. 

suggested    that    a    little    of    something    slightly 
stronger  than  tea  might  not  be  unpalatable  ;  but, 
alas  !  spirits  were  tabooed  on  the  line,  so  there  was 
nothing  for  it  but  to  make  a  foray  into  the  adjoin 
ing  neighborhood    for   additional   stimulants.     A 
porter  kindly  showed  the  way  to  a  public  house  on 
the  opposite  side  of  the  highroad  passing  the  sta 
tion.    We  were  soon  all  practising  with  great  suc 
cess  at  the  bar,  but  while  enjoying  ourselves  to 
the  full,  the  engine-bell  rang  out  sharp  and  clear 
on  the  frosty  air.     Off  we  all  rushed  helter-skelter, 
and  to  save  time,  instead  of  returning  by  the  way 
we  came,  we  took  what  we  thought  was  a  bee-line 
for  the  station  lights  (but  which  turned  out  to  be 
the  engine's)  across  some  unfenced  ground.     Be 
fore  we  well  knew  where  we  were  we  were  all 
tumbling  pell-mell,  one  over  the  other,  into  a  wide 
ditch  some  three  feet  deep.     However,  we  gained 
the   cars  in  time,   and    then   one  of    our   chance 
acquaintances  —  who,  having  been  leading  in  the 
race,  went  down  first  and  was  trampled  upon  by 
the  rest  —  found  that  his  arm  was  badly  hurt  ;  so 
the  Q.  C.  and  myself  tried  to  console  him  with  the 
assurance  that  he  was  safe  to  recover  a  verdict 
against  the  company  if  he  only  entrusted  his  case 
into  the  hands  of  either  of  us,  for  a  railway  com 
pany  is  bound  so  to  fence  its  station  that  the  pub 
lic  will  not  be  misled,  by  seeing  a  place  unfenced, 
into  injuring  themselves  by  passing  that  way,  it 


PLATFORMS    AND    ALIGHTING.  145 

being  the  shortest  road  to  the  platform.1  (Though 
by  the  way,  a  Canadian  court  has  considered  that 
companies  are  not  responsible  if  parties  come  to 
grief  through  taking  short  cuts,  if  the  proper  way 
of  ingress  and  egress  to  the  station  is  safe,  con 
venient,  and  well-lighted ; 2  but  in  another  case  a 
man  who  broke  his  leg  in  two  places  by  falling 
into  a  culvert,  constructed  by  the  company  in  the 
highway,  while  leaving  the  station  on  a  dark  and 
stormy  night,  got  $2,000  damages.)  3  The  neglect 
properly  to  light  a  station,  or  to  have  a  sufficient 
corps  of  servants  to  aid  passengers  in  alighting  at 
night,  is  evidence  of  negligence.* 

Thinking  that  the  man  was  an  American  citi 
zen,  I  told  him  that  Mr.  C.  J.  Dillon,  of  the  State 
of  Iowa,  had  said  on  a  comparatively  recent  occa 
sion  that  "  railway  companies  are  bound  to  keep 
in  a  safe  condition  all  portions  of  their  platforms 
and  approaches  thereto  to  which  the  public  do  and 
would  naturally  resort,  and  all  portions  of  their 
station-grounds  reasonably  near  to  the  platforms, 
where  passengers,  or  those  who  have  purchased 
tickets  with  a  view  to  take  passage  in  their  cars, 
would  naturally  or  ordinarily  be  likely  to  go."  5 

"  And,  my  dear  sir,"  said  the  Q.  C.,  who,  more 
observant  than  myself,  had  noticed  a  pile  of  H's 

Burgess  v.  Q.  W.  R.,  32  L.  J.  76. 
Walker  r.  G.  W.  R.,  8  U.  C.  C.  P.  161. 
Fairbanks  v.  G.W.  R.,  35  Q.  B.  (Ont.),  523. 
Patten  v.  Ch.  &  N.  W.  Rvv.,  36  Wis.  413. 
McDonald  v.  Chicago,  etc.,  26  Iowa.  124. 
W.  &  R.  OF  T.—  ID 


146         PLATFORMS  AND  ALIGHTING. 

accumulating  in  front  of  the  man,  "  there  is  a 
much  stronger  English  case,  where  one  Martin 
arrived  at  a  station  less  than  two  minutes  before 
the  time  for  the  train  to  leave,  and  while  running 
along  the  line  —  in  a  place  where  he  should  not 
have  gone  —  in  order  to  reach  the  train  which  was 
a  little  ahead,  he  stumbled  over  a  switch  handle, 
fell  on  his  elbow,  and  was  considerably  hurt.  The 
jury  considered  that  the  company  had  been  guilty 
of  negligence  and  want  of  proper  care,  and  gave 
Martin  £20,  and  the  court  would  not  interfere."1 

"Veil,  hi  think  the  Hinglish  case  is  the  one  for 
my  money,"  quoth  our  new  found  friend.  "  Hand 
hi'll  rub  my  harm  with  a  little  hof  this  to  prevent 
any  'arm,"  he  added,  producing  a  pocket  comfor 
ter  that  Job  never  knew  of. 

"  Don't  waste  good  stuff  that  way,"  said  Mr. 
Smith.  "  Apply  it  internally,  and  rub  your  arm 
with  the  bottle." 

"  Ho-ho-ho ! "  laughed  John  Bull  at  the  wretched 
joke,  which  doubtless  Avas  first  perpetrated  "  when 
the  Memnonium  was  in  all  its  glory."  He  took 
the  advice,  however,  and  the  brandy  with  a  ven 
geance. 

Some  little  while  after  I  saw  him  steadying 
himself  as  he  stood  up  on  the  seat,  and  poking 
with  his  stick  at  the  top  of  the  car :  supposing  he 
was  striving  to  open  the  ventilator,  I  paid  little 

1  Martin  v.  Gt.  Northern  Rw.,  16  C.  B.  179  ;  and  see  the  case  of  stumbling 
over  the  hampers,  Nicholson  r.  Lancashire  &  York  Rw.,  3  Hurl.  &  C.  534. 


PLATFORMS    AND    ALIGHTING.  147 

attention  to  him.  In  a  few  minutes  the  train 
suddenly  stopped,  —  in  a  few  seconds  more  the 
conductor  came  rushing  into  the  car,  excitedly 
asking  if  any  one  had  pulled  the  rope  or  commu 
nicator. 

"  C'mum  'cat'or  ?  "  asked  J.  Bull,  "  I  wang  the 
bell  for  some  bwandy  'n-vater.  And  dooced  'ard 
work  hi  'ad  to  reach  hit.  Where  's  the  'andle?"  l 
Speedily  the  train  was  again  under  weigh. 

At  length,  after  several  hours  more  of  journey 
ing  we  arrived  at  our  destination,  thankful  that  as 
yet  all  bones  were  safe  and  sound.  Alas,  I  was 
hallooing  before  I  was  out  of  the  wood,  for  as  I 
emerged,  the  light  being  very  dim,  I  fancied  I 
was  stepping  on  the  platform,  but  as  I  landed  vio 
lently  on  the  ground  I  found  that  the  car  was 
some  feet  beyond  the  platform.  Of  course  rail 
ways  should  bring  their  trains  to  a  halt  at  places 
convenient  for  passengers  to  alight.  Bringing  a 
car  to  a  solemn  stand-still  at  a  spot  at  which 
it  is  unsafe  to  get  out,  under  circumstances  which 
warrant  one  in  believing  that  it  is  intended 
he  shall  alight  and  that  he  may  do  so  in  safety 
(without  giving  him  warning  of  his  danger), 
amounts  to  negligence  on  the  part  of  the  com 
pany,  for  which  an  action  may  be  maintained  if 
the  passenger  has  not  in  any  way  contributed  to 
wards  the  accident.2  This  highly  sensible  rule 

1  See  Punch  for  February,  1874. 

2  Cockle  v.  London  &  S.  E.  Rw.  Co.,  L.  R.,  7  C.  P.  721  (Ex.  Ch.). 


148  PLATFORMS    AND    ALIGHTING. 

was  adopted  in  the  case  of  one  Praeger,  where  — 
as  I  afterwards  found  —  Lord  Chief  Justice  Cock- 
burn,  of  Geneva  award  renown,  said :  "I  adopt 
most  readily  the  formula  which  has  been  sug 
gested  as  applicable  to  these  cases,  viz.,  that  the 
company  are  bound  to  use  reasonable  care  in  pro 
viding  accommodation  for  passengers,  and  that 
the  passengers  are  also  bound  to  use  reasonable 
care  in  availing  themselves  of  the  accommodation 
provided  for  them."  1  Of  course,  if  it  had  been 
daylight,  and  I  could  have  used  my  eyesight  to 
any  practical  purpose,  and  had  noticed  that  the 
car  was  not  in  the  ordinary  position  with  regard 
to  the  platform,  I  would  certainly  have  exercised 
a  little  more  caution  in  getting  out  and  not  have 
been  such  a  ninny-hammer  as  to  step  down  in  the 
way  I  did,  for  I  can  assure  the  general  public, 
that  it  is  anything  but  agreeable  to  step  upon  thin 
air  and  be  thrown  violently  upon  one's  nasal  organ, 
—  which  always  seems  tremendously  projecting 
on  such  occasions,  —  abrasing  one's  elbows  and 
knees. 

As  I  had  my  homeward  journey  to  perform  by 
rail,  and  there  seemed  a  chance  of  my  being  re 
duced  to  an  atomic  condition  before  I  once  again 
saw  the  wife  of  my  bosom,  I  then,  for  the  benefit 
of  my  numerous  readers  (for,  of  course,  I  meant 
to  publish  a  book,  as  every  one  does  nowadays), 
dotted  down  a  few  decisions  which  I  thought  might 

i  Praeger  v.  Bristol  &  Exeter  Rw.,  24  L.  T.  (N.  S.)  105. 


PLATFORMS    AND    ALIGHTING.  149 

be  useful  for  them  to  bear  in  mind  in  case  they 
ever  came  to  grief  in  alighting  from  a  railway 
train  ;  and  here  they  are  pro  bono  publico. 

(N.  B.  —  Those  frivolous  persons  who  only  read 
to  pass  the  time,  had  better  turn  at  once  to  the 
next  chapter.) 

Where  the  train  overshot  the  platform  so  that 
the  car  in  which  one  Whitaker  was  sitting  stood 
opposite  to  the  parapet  of  a  bridge,  the  top  of 
which  in  the  dusk  looked  like  the  platform ;  the 
porters  having  called  out  the  name  of  the  place, 
W.  getting  out  on  the  parapet  in  the  bond  fide  be 
lief  that  he  was  stepping  on  the  platform,  fell  over 
and  was  injured,  but  recovered  from  the  company. 
Bovill,  C.  J.,  held  that  on  this  occasion  there  was 
a  clear  invitation  to  alight  at  a  dangerous  place, 
and  that  W.  was  misled  by  the  appearance  of  the 
parapet,  and  so  distinguished  the  case  from  the 
Bridges  one,  to  which  I  will  refer  in  a  moment  or 
two.1  Where  in  the  dark,  a  passenger  on  alight 
ing  fell  into  a  culvert,  over  which  the  car  had 
stopped,  the  company  were  held  liable.2 

Owing  to  the  length  of  the  train  in  which  a 
Mr.  and  Mrs.  Foy  were  journeying,  there  was  not 
room  for  all  the  cars  to  be  drawn  up  at  the  plat 
form,  and  some  of  the  passengers  were  desired  to 
get  out  upon  the  line  beyond  it.  The  distance 
from  the  carriage  to  the  ground  was  only  three 

1  Whitaker  v.  Manchester  &  S.  Rw.  Co.,  L.  R.,  5  C.  P.  464. 

2  Col.  &  Ind.  C.  Rw.  Co.  v.  Farrell,  31  Ind.  408. 


150  PLATFORMS   AND    ALIGHTING. 

feet ;  Mrs.  F.  (instead  of  sensibly  availing  herself 
of  the  two  steps  of  the  carriage)  with  the  aid  of 
Mr.  Foy  jumped  from  the  first  step  to  the  ground, 
and — not  being  a  practised  athlete  or  gymnast 
but  a  sweet  little  thing — came  down  upon  the 
ground  like  a  barrel  of  sugar  with  such  a  thud 
that  the  vertebrae  of  her  back  were  jarred  and  the 
spine  injured.  The  jury  found  that  the  company 
were  guilty  of  negligence  in  not  providing  reason 
able  means  of  alighting,  and  that  the  lady  had 
not  contributed  to  the  accident,  and  they  gave  her 
.£500  to  pay  her  doctor's  bills  ;  and  the  court  con 
sidered  the  verdict  warranted  and  declined  to  in 
terfere  with  the  damages.1  Bovill,  Q.  C.,  urged 
that  if  the  lady,  instead  of  jumping  as  she  did,  had 
turned  herself  round  and  availed  herself  of  the  as 
sistance  of  both  steps  and  of  the  handles  of  the 
carriage,  the  accident  would  not  have  happened  ; 
but  Williams,  J.,  said  severely  that  "  in  the  pres 
ent  fashion  of  female  attire,  the  mode  of  descent 
suggested  by  the  learned  counsel  would  be  scarcely 
decent !  ".  This  judgment  was  given  in  1865,  and 
as  fashions  change  two  or  three  times  a  year,  one 
can  hardly  decide  what  a  lady  might  or  should  do 
in  this  present  year  of  grace,  especially  as  the  vir 
tuous  judge  did  not  insinuate  wherein  in  such  a 
descent  would  lie  the  lack  of  woman's  crowning 
glory,  modesty. 

While  speaking  of  ladies  and  their  attire  I  may 

3  Foy  &  Wife  r.  London,  B.,  &  S.  C.  Rw.  Co.,  18  C.  B.  (N.  S.),  225. 


PLATFORMS    AND    ALIGHTING.  151 

mention  that  Mrs.  Mary  Poulin,  while  alighting 
from  a  Broadway  car,  with  her  youngest  hopeful 
in  her  arms,  caught  her  steel  hoop-skirt  upon  a 
nail  in  the  cur  platform  ;  this  threw  her  down, 
and  she  was  dragged  some  distance,  and  seriously 
injured  and  greatly  frightened.  The  company 
tried  to  escape  liability  by  the  ungallant  plea  that 
hoops  were  not  a  necessary  article  of  female  ap 
parel  and  that  if  Mrs.  P.  was  determined  to  wear 
such  inflated  skirts  she  ought  to  have  exercised 
more  care  than  is  required  of  a  brother  in  sit- 
upons  ;  the  court,  however,  differed  from  the  com 
pany,  and  considered  that  the  fair  lady  had  been 
guilty  of  no  negligence,  and  that  if  the  railroad 
carried  passengers  adorned  with  crinolines  they 
must  see  to  their  safety.1 

Old  Siner  and  his  wife  arrived  in  daylight  at 
Rhyl  Station  and  the  carriage  in  which  they  were 
overshot  the  platform ;  the  passengers  were  neither 
told  to  keep  their  seats  nor  to  get  out,  nor  did  the 
train  move  until  it  started  on  its  forward  journey. 
After  exhausting  his  stock  of  patience,  S.  follow 
ing  the  example  of  his  fellow  travellers  alighted, 
without  asking  the  company's  servants  to  back 
the  train  to  the  platform  or  holding  any  commu 
nication  with  them  whatever.  The  wife  then, 
standing  on  the  iron  steps  of  the  carriage,  grasped 
both  her  husband's  hands  and  jumped  down,  strain 
ing  her  knee  in  the  act,  She  did  not  use  thefoot- 

1  Poulin  v.  Broadway,  etc.,  Rw.,  34  N.  Y.  Sup.  Ct.  296. 


152  PLATFORMS    AND    ALIGHTING. 

board.  There  was  no  evidence  of  any  carelessness 
or  awkwardness  except  what  might  be  inferred 
from  these  facts.  In  an  action  brought  against 
the  company  for  this  injury,  the  court  held  (Kelly, 
C.  B.  diss.)  that  there  was  no  evidence  of  negli 
gence  in  the  defendants,  and  that  the  accident 
was  entirely  the  result  of  the  woman's  own  act  in 
awkwardly  and  carelessly  jumping.1  The  Foy 
case  was  distinguished,  as  there  an  express  invita 
tion  to  alight  was  given. 

Where  a  gentleman,  the  corneas  of  whose  eyes 
were  far  more  convex  than  those  of  the  generality 
of  the  genus  homo,  knowing  well  the  station,  got 
out  of  the  train  while  the  carriage  in  which  he  had 
been  sitting  was  still  in  a  tunnel,  and  in  making 
his  way  to  the  platform  stumbled  over  some  rub 
bish  and  fell,  breaking  his  leg  and  otherwise  in 
juring  himself  so  that  he  shortly  died  from  the 
effects,  it  was  held  by  the  House  of  Lords  (re 
versing  the  decision  of  the  court  below)  that  the 
train  having  come  to  a  stand-still,  the  calling  out 
the  name  of  the  place  was  an  invitation  to  alight, 
and  that  the  company's  servants  calling  out  after 
wards  "  Keep  your  seats,"  showed  that  it  had  been 
improvidently  uttered,  and  therefore  furnished 
evidence  of  negligence,  and  that  the  personal  rep 
resentative  of  Mr.  Bridges  was  entitled  to  recover 
against  the  company.2  The  shortsightedness  of 

1  Siner  v.  G.  W.  11.,  L.  R.,  3  Ex.  150. 

2  Bridges  v.  North  London  Rw.  Co.,  L.  R..  6  Q.  B.  377.     Tn  appeal  L.  R., 
7  II.  L.  213. 


PLATFORMS    AND    ALIGHTING.  153 

the  deceased  imposed  no  additional  duties  on  the 
company.  In  another  case  the  court  thought  that 
the  conduct  of  a  traveller,  who  fell  down  between 
the  car  and  the  platform,  which  curved  gracefully 
back  from  the  line,  amounted  to  contributory  neg 
ligence  and  so  made  absolute  a  rule  to  enter  a 
nonsuit.1 

In  Bridges'  case  it  was  unanimously  held  by  the 
whole  court,  that  the  calling  out  the  name  of  a 
station  is  not  in  itself  an  intimation  to  the  passen 
gers  to  alight ;  whether  it  is  so  or  not  must  de 
pend  on  the  circumstances  of  each  particular  case. 
Willes,  J.,  said,  "  Nobody  who  travels  by  rail  who 
has  a  head  on  his  shoulders  would  ever  say  that 
calling  out  the  name  was  an  invitation  ;  "  but 
many  a  man  with  a  head  on  his  shoulders,  and 
with  something  in  that  head  too,  acts  as  if  he  did, 

indeed   C.   J.  Redfield  says  that  Bridges  only 

did  what  the  great  majority  of  men  would  have 
done  under  similar  circumstances.  (In  fact  Red- 
field  considers  that  in  the  late  cases  the  English 
courts  have  overstrained  things  in  favor  of  the 
companies.)2  Baron  Cleasby  thought  that  in 
reality  the  stopping  of  the  train  at  the  station  is 
the  invitation  to  alight.  Bovill,  C.  J.,  said  that 
whether  calling  out  was  a  request  to .  get  out  or 
not  was  a  question  for  a  jury.3  In  a  late  case 

1  Praeger  v.  Bristol  &  Exeter  Rw.,  L.  R.,  5  C.  P.  460,  n.  1 ;  also  Plant  *. 
Midland  Rw.  Co.,  21  L.  T.  (N.  8.),  836  ;  and  llarrold  t».  Great  Western  Rw.,  14 
L.  T.  (N.  S.),  440. 

2  Redfield  on  Railways,  vol.  ii.,  p.  264. 

s  Whitaker  v.  Manchester  &  S.  Rw.,  L.  R.,  5  C.  P.  464. 


154  PLATFORMS    AND    ALIGHTING. 

Mr.  Justice  Blackburn  gave  it  as  his  decided  opin 
ion,  that  calling  out  the  name  is  merely  an  inti 
mation  to  all  on  the  train  that  the  place  at  which 
the  cars  are  about  to  stop  is  that  particular  sta 
tion  named  ;  and  he  adds  (most  truthfully)  that 
every  person  must  have  heard  porters  at  stations 
call  out  something  which,  if  the  traveller  happens 
to  know  the  name  of  the  place,  is  recognizable, 
but  if  the  name  is  not  known,  no  reliable  informa 
tion  is  gained  from  the  porter's  cry.1  In  a  still 
later  case  it  was  said  that  the  train  having  over 
shot  the  platform  and  the  name  of  the  place  hav 
ing  been  called  out,  the  omission  of  the  company's 
servants  to  caution  passengers  not  to  alight  until 
the  train  had  been  brought  up  at  the  proper  place 
was  evidence  of  negligence,  or  according  to  Honey- 
man,  J.,  negligence  itself.2 

Companies  are  bound  to  provide  platforms,  or 
safe  places  of  deposit,  for  passengers  to  alight  on  at 
their  stations  and  to  deliver  them  there.  If  there 
is  any  difficulty  in  the  passengers'  getting  out,  the 
officers  should  assist  them  to  do  so.3  If  the  place 
where  one  is  required  to  alight  is  in  fact  danger 
ous,  it  is  his  duty  to  request  the  train  to  be  put  in 
its  proper  place  ;  and  this  is  a  request  which  no 
station-master  would  venture  to  refuse,  knowing 

1  Lewis  &  Wife  v.  London  C.  &  D.  Rw.,  L.  R.,  9  Q.  B.  69 ;  Cockle  t«.  Lon 
don  &  S.  E.  Rw.,  L.  R.,  5  C.  P.  457  (Ex.  Ch.),  distingaished. 

2  Weller  v.  London,  Brighton,  &  S.  C.  Rw.,  L.  R.,  9  C.  P.  126. 

3  Memphis  &  Charleston  Rw.  r.  Whitficld,  44  Miss.  466 :  Robson  r.  N.  E. 
Rw.,  L.  R.,  10  Q.  B.  271. 


PLATFORMS    AND    ALIGHTING.  155 

the  risk  he  would  incur  if  an  accident  happened 
through  his  refusal.  If  the  defendants  will  not 
place  the  train  properly,  the  plaintiff  should  stay 
in  the  carnage.  So,  at  least,  said  the  judges  in 
Siner  v.  Great  Western  Railway  {supra)  ; l  but 
we  can  well  imagine  the  surprised  look  —  tinged 
strongly  with  scorn  —  of  a  conductor  upon  any 
one  of  our  Cis-atlantic  railways,  were  he  asked  to 
move  his  train  forwards  or  backwards  merely  for 
the  convenience  of  his  living  freight. 

If  a  man  persists  in  getting  off  a  train  while  it 
is  in  motion,  especially  if  he  has  been  warned  by 
the  conductor  not  to  do  so,  he  has  no  claim  against 
the  company  for  any  damage  he  may  receive  in 
the  act ; 2  and  so  when  one  attemped  to  get  on  a 
train  while  moving  and  was  killed  in  the  attempt, 
it  was  held,  as  a  matter  of  law,  that  no  recovery 
could  be  had.3  But  otherwise  where  one  lost  his 
life  in  jumping  off  hy  the  direction  of  the  conduc 
tor.4  The  courts  of  Mississippi  have  laid  it  down 
clearly  that  it  is  the  duty  of  railway  companies  to 
announce  audibly  in  each  car  the  name  of  the 
station  reached  and  then  allow  sufficient  time  for 
the  passengers  safely  to  leave  the  carriages ;  and 
that  on  the  other  hand  it  is  the  duty  of  the  pas 
sengers  to  use  reasonable  care,  and  to  conform  to 
the  customs  and  usages  of  the  company  so  far  as 

1  See  also,  Memphis  &  C.  R\v.  v.  Whitfield,  44  Miss.  466. 

2  Ohio  &  Miss.  R\v.  v.  Schiebe,  44  111.  460. 

s  Knight  v.  Ponchartrain  Rw.,  23  La.  Ann.  462. 
*  Lambeth  v.  North  Carolina  Rw.,  66  N.  C.  494. 


156  PLATFORMS    AND    ALIGHTING. 

they  know  and  understand  them.1  If  a  company 
through  neglect  of  their  duty  expose  a  passenger 
to  obvious  peril,  or  grave  inconvenience,  and  the 
traveller  to  escape  the  threatened  peril,  or  incon 
venience,  does  something  that  is  not  obviously 
dangerous  (although  it  may  be  the  cause  of  the 
injury)  the  company  will  be  liable.2 

Where  a  man  is  so  drunk  that  he  cannot  take 
care  of  himself,  if  the  conductor  is  aware  of  it,  he 
must  bestow  upon  him  the  requisite  degree  of  at 
tention  to  save  him  from  injury;3  and  so  when  a 
traveller  is  sick. 

Ah  me  !  I  fear  that  this  long  dilating  will  cause 
my  Diary  to  be  sent 

To  bind  a  book,  to  line  a  box, 
Or  serve  to  curl  a  maiden's  locks. 

'  Southern  R\v.  v.  Kendrick,  40  Miss.  374. 

2  Adams  v.  Lancashire  &  Y.  Rw.,  L.  R.,  4  C.  P.  744. 

8  Giles  «.  G.  W.  R.,  36  Q.  B.  (Ont.)  360. 


BAGGAGE.  157 


CHAPTER  XL 
BAGGAGE. 

Gone.  —  Company  liable  for  Lost  Baggage.  — Carelessness  of  Owner. 

—  Checking.  —  What   is  Baggage  ?  —  Papers.  —  Spring-horse.  — 
Household  Goods  going  West.  —  Luggage  left  in  Cloak-room.— 
Limitation    of  Liability.  —Taking  Change.  —  Railroad    Police.— 
Beauties  of  Checks.  —  Fall  of  a  Window.  —  Legs  and  Arms  outside. 

—  Officials  squeezing  Fingers.  —  Stern  Boreas. 

MISFORTUNES  never  come  singly,  for  birds  of  a 
feather  flock  together.  Scarcely  had  I  got  to  the 
hotel  and  begun  ruefully  examining  the  discolora- 
tions  on  my  nether  limbs  and  putting  a  piece  of 
sticking-plaster  on  the  top  of  my  proboscis,  when  a 
thought  struck  me,  and  really  hurt  me,  so  that  I 
involuntarily  exclaimed,  "  Why,  where  's  my  bag  ?  " 
Of  one  thing  I  was  soon  satisfied,  namely,  that  it 
was  not  there.  I  ran  my  fingers  through  my  hair 
to  let  the  cooling  air  as  near  as  possible  to  my 
heated  brain,  and  after  mature  reflection  came  to 
the  conclusion  that  I  had  seen  nothing  of  it  since 
I  had  left  it  in  the  car  while  I  went  out  after 
those  refreshments  already  referred  to  ;  for  on  my 
return,  finding  in  my  seat  a  lovely  girl,  with  long 
dark  eyelashes,  soft  tender  dark-blue  eyes,  a  be 
witching  smile,  and  dimples  which  rippled  round 
her  ruby  lips  as  she  talked  and  laughed  with  a 


158  BAGGAGE. 

young  fellow  of  a  vinegar  aspect  who  sat  beside 
her,  I  had  located  myself  elsewhere.  Both  these 
individuals  had  got  out  at  the  next  station,  but  I 
had  never  again  noticed,  or  even  thought  of,  my 
bag. 

When  I  met  the  Q.  C.  in  the  dining-hall  I  told 
him  of  my  loss. 

"  What  had  you  in  your  bag  ?  "  he  inquired, 
with  the  air  of  a  man  who  thought  that  he  knew 
a  thing  or  two  about  lost  luggage. 

"  Nothing  but  my  brushes  and  razors,  pen  and 
ink ;  some  shirt-fronts  alias  dickeys,  and  other 
clothing." 

"  Ah  well !  you  are  all  right !  you  can  easily 
recover  the  value  of  the  waifs  and  strays  from  the 
company ;  for  all  those  things  have  been  held  to 
be  such  personal  baggage  as  a  traveller  has  a  right 
to  carry  with  him.1  Have  you  got  your  check  ?  " 
he  added. 

"  No.  It  was  not  checked.  I  carried  it  into  the 
car  with  me,  and  left  it  to  keep  my  place  when 
we  got  out  for  refreshments,  and  it  was  gone  be 
fore  I  got  back  into  my  seat  —  at  least  I  have  not 
beheld  it  since." 

"  N'importe  !  as  the  frog-eaters  say.  You  are 
entitled  to  recover,  for  your  ticket  gives  you  a 
right  to  be  carried  with  your  luggage  ;2  and  a  by- 

1  Hawkins  v.  Hoffman,  6  Hill  (N.  Y.),  586 ;  Duffy  v.  Thompson,  4  E.  D. 
Smith,  178. 

2  Gamble  v.  G.  W.  Rw.,  24  U.  C.  Q.  B.  407  ;  Le  Contour  v.  London  &  S.  W. 
Rw.,  L.  R.,  1  Q.  B.  54. 


BAGGAGE.  159 

law  to  the  effect  that  a  company  will  not  be  re 
sponsible  for  baggage  unless  booked,  has  been  held 
bad  in  England.1  Of  course,  if  you  had  kept  ex 
clusive  control  over  your  bag,  the  company  would 
not  ordinarily  be  liable.2  And  when  a  man  has 
his  traps  taken  into  the  car  with  him  for  his  own 
convenience  he  impliedly  undertakes  to  use  rea 
sonable  care ;  and  if  one  were  to  leave  his  port 
manteau  in  one  car  while  he  went  and  travelled 
in  another,  and  the  portmanteau  was  rifled,  he 
could  not  recover  for  his  loss ;  3  nor,  if  he  stupidly 
forgot  to  take  his  overcoat  with  him,  when  he  left 
the  train."  4 

"  I  had  an  idea,"  I  said,  "  that  a  Canadian 
judge  had  expressed  an  opinion  to  the  effect  that 
the  system  of  checking  in  vogue  in  this  enlight 
ened  country  was  notice  to  passengers  that  all  ar 
ticles  must  be  checked  or  handed  to  the  company's 
servants,  except  what  they  desire  or  prefer  to  keep 
under  their  own  personal  care  and  at  their  own 
risk.  Did  you  ever  meet  with  such  a  dictum  or 
decision  ?  " 

"  Oh  yes,  I  noticed  the  case  only  the  other  dny. 
Morrison,  J.,  did  speak  to  that  effect,  but  he  was 
overruled,  and  Draper,  C.  J.,  said  that  he  con 
sidered  checking  only  as  additional  precautions 

3  Williams  v.  G.  W.  Rw.,  10  Ex.  15;  see  also,  G.  W.  R.  v.  Goodman   12 
C.  B.  313. 

2  Tower  v.  Utica  &  Sch.  Rw.,  7  Hill  (N.  Y.),  47;  and  Wilde,  J.,  in  Rich 
ards  v.  London,.B.,  &  S.  C.  Rw.,  7  C.  B.  839. 

3  Talley  v.  G.  W.  R.,  L.  R.,  6  C.  P.  44. 

4  Tower  v.  Utica  &  Sch.  Rw.,  supra 


160  BAGGAGE. 

taken  by  the  company,  beyond  what  is  customary 
in  England,  in  order  to  prevent  the  luggage  from 
being  given  up  to  the  wrong  person  ;  that  the 
company  would  be  liable  for  a  loss  in  case  no  such 
means  of  checking  was  in  use,  and  if,  notwith 
standing,  a  loss  occurs,  the  liability  is  unchanged, 
in  the  absence  of  express  notice  on  their  part  that 
they  will  be  responsible  only  for  articles  checked.1 
By  the  way,  were  there  any  papers  in  your  bag  ?  " 

"  No  ;  they  were  all  in  my  pocket.  I  have  not 
many  with  me,  and  I  remember  seeing  it  decided 
that  title  deeds,  which  an  attorney  was  carrying 
with  him  to  produce  on  a  trial,  were  not  baggage 
for  the  loss  of  which  a  carrier  would  be  responsi 
ble."  2 

"  Prudent  man  ! "  replied  my  friend,  as  he 
turned  on  his  heel  and  departed. 

What  I  did  at  the  place  where  I  now  was  con 
cerns  nobody  except  those  who  had  the  pleasure 
of  paying  my  travelling  expenses  to  and  fro  and 
my  hotel  bill  while  there.  To  dilate  with  any 
particularity  on  the  subject  might  lead  one  into  a 
breach  of  that  well-established  rule  concerning 
privileged  communications  between  attorneys  and 
their  clients. 

At  length  my  labors  were  at  an  end  and  I  was 
at  perfect  liberty  to  return  to  my  Lares  et  Penates 
at  my  earliest  convenience.  My  readers  must  not 
suppose,  from  the  fact  that  my  bag  and  baggage 

i  Gamble  p.  Great  Western  Rw.,  24  U.  0-  Q.  B.  407. 
»  Phelps  v.  London  &  N.  W.  Rw.,  19  C.  B.  (N.  8.),  321. 


BAGGAGE.  :l(jl 

had  been  lost,  that  I  was  acting  the  Nazarite  all 
this  time ;  no  indeed,  I  had  bought  all  the  neces 
sary  articles  of  a  gentleman's  toilet  and  some 
changes  of  raiment,  and  with  these  in  a  bran  new 
valise  I  was  ready  to  start  en  route  for  the  place 
whence  I  had  come  forth. 

I  was  rather  amused,  while  awaiting  the  arrival 
of  my  train  at  the  station,  by  a  controversy  be 
tween  what  was  evidently  a  "fond  parient "  of 
rural  origin  and  the  baggage-master.  The  father 
had  invested  in  a  spring-horse  for  his  youthful 
son  and  heir  to  exercise  upon ;  the  creature  was 
forty-four  inches  long  and  weighed  seventy-eight 
pounds.  The  man  wished  it  passed  as  luggage. 

"  No,  you  will  have  to  pay  freight  for  this,';' 
said  he  of  the  chalk  and  checks. 

"But  I  have  nothing  else,  and  I  am  certainly 
entitled  to  carry  something,"  urged  the  man. 

"  Yes,"  returned  the  other,  "  you  are  entitled 
to  take  your  personal  baggage  with  you ;  but 
if  you  have  none,  that  does  not  give  you  the 
right  to  take  other  things  instead,1  and  a  horse  of 
this  color  is  personal  luggage  by  no  manner  of 
means."  2 

Just  then  a  friend  came  up  to  me  and  asked 
what  was  included  in  the  personal  baggage  which 
a  man  was  entitled  to  take  with  him,  free  of 
charge.  I  said  :  — 

1  Pardee  v.  Drew,  25  Wend.  459. 

2  Hudston  v.  Midland  Il\v.,  L.  R.,  4  Q.  B.  366. 

W.  &R.  OFT.— 11 


162  BAGGAGE. 

"  My  dear  sir,  that  is  a  question  which  lias 
often  pressed  itself  seriously  upon  the  considera 
tion  of  a  contemplative  traveller  and  philosophic 
jurist  like  myself,  when  on  entering  a  crowded 
train  I  have  found  one  half  of  the  seats  occupied 
bv  c  stern  realities '  or  bipedal  extremities,  and 
the  other  half  by  bundles  and  bandboxes,  nursery 
paraphernalia,  and  the  oleaginous  and  saccharine 
products  of  the  kitchen  and  the  cook-shop  ;  and 
-also  when  I  have  considered  how  gravely  the 
question  has  agitated  courts  of  justice.  One  of  our 
own  learned  judges  has  forcibly  remarked  that 
'the  authorities  and  references  show  it  is  much 
easier  to  say  what  is  not  personal  or  ordinary  lug 
gage,  than  it  is  to  decide  what  it  is  which  a  carrier 
is  bound,  or  which  it  is  usual  for  him  to  carry 
along  with  his  passengers.' ' 

"  You  have  made  a  long  oration,  but  have  not 
answered  my  question ;  just  like  you  lawyers, 
always  darkening  counsel  by  words." 

u  State  your  question  more  definitely,"  I  re 
marked. 

"  Well,  then,  there  is  a  poor  man  here,  moving 
West  with  his  family.  He  has  a  bed,  pillows, 
bolsters,  and  bed-quilt  in  a  trunk,  or  a  box,  with 
his  clothes  ;  he  is  carrying  them  for  his  own  use. 
Should  he  be  compelled  to  pay  freight  on  them  ? 
He  says  that  he  has  no  money  ;  and  I  don't  want 
to  see  the  poor  beggar  put  upon." 

"  Yours  is  a  question  which  I  cannot  definitely 


BAGGAGE.  163 

answer.  In  England,  it  was  decided  that  such 
things  were  not  personal  baggage.!  In  Vermont 
it  was  held  a  matter  for  a  jury  to  pronounce  upon, 
after  considering  the  peculiar  circumstances,  the 
value,  the  quantity,  and  the  intended  use  of  the 
articles."  2 

"  '  He  would  not,  with  a  peremptory  tone, 
Assert  the  nose  upon  his  face,  his  own ; 
With  hesitation,  admirably  slow, 
He  humbly  hopes,  presumes  it  may  be  so.'  " 

said  my  friend  mockingly,  and  then  added  pep- 
perishly,  "  You  unsatisfactory  lawyers  will  never 
give  a  sensible  reply  to  the  simplest  question." 

"  Granted.  But  yours  was  not  the  simplest 
question.  Were  an  ordinary  layman  like  your 
self  to  read  but  a  tithe  of  what  has  been  written 
on  the  moot  point  of  personal  luggage  or  not,  you 
would  be  a  sadder,  if  not  a  wiser  man  than  you 
now  are  ;  so  voluminous  are  the  decisions,  that  a 
Saratoga  trunk  would  fail  to  contain  all." 

"  Well,  you  are  not  luminous  anyway. 

"  '  Lawyers  each  dark  question  shun 

And  hold  their  farthing  candle  to  the  sun.' 

I  'm  off  to  get  my  traps  in  the  cloak-room." 

"  I  '11  go  with  you,"  I  replied. 

When  we  got  to  the  room  we  found  the  door 
locked,  and  that  the  man  in  charge  was  off  for  an 
hour  or  so. 

44  Well,  that  is  a  pretty  how-do-ye-do  ;  my  train 

1  Macrow  v.  Gt.  Western  Rw.  Co.,  L.  R.,  6  Q.  B.  612. 

2  Ouimit  r.  Henshaw,  36  Vt.  605. 


]  64:  BAGGAGE. 

will  be  going  in  a  few  minutes,  so  what  am  I  to 
do?" 

"  Have  you  got  a  ticket  for  your  baggage  ?  "  I 
inquired. 

"  Yes,  and  paid  tuppence  for  it.  Here  it  is." 
On  the  back  of  it  were  some  printed  conditions, 
but  nothing  was  said  as  to  the  hours  the  cloak 
room  was  kept  open,  or  at  what  time  the  box  was 
to  be  re-delivered. 

"  It  is  clear,"  I  remarked,  "  that  the  company 
is  bound  to  give  you  your  box  on  your  reasonable 
request,  and  at  any  reasonable  time."1 

"  But  what  good  does  that  do  me,  if  they  are 
not  here  to  give  me  my  things  now  ?  I  must  go 
on  whether  I  get  them  or  not." 

"  You  can  sue  them,"  I  remarked. 

"All  very  fine,  but  I  have  a  case  of  patterns 
which  I  need  with  me  ;  and  suppose  it  is  lost  ?" 

"  Well,  of  course,  you  can't  recover  damages 
beyond  the  actual  value  of  the  goods.  No  ware 
houseman  is  responsible  beyond  the  actual  value 
of  the  article  lost  or  damaged,  unless  there  was  a 
special  contract.2  What  was  the  value  ?  " 

"  Thirty  or  forty  pounds." 

"  What !  " 

"  Can't  you  hear  ?  I  say  thirty  or  forty  pounds." 

"  Well,  I  am  very  sorry  for  you.  Did  not  you 
see  the  notice  on  the  ticket  that4 the  company 

i  Stallard  v.  Gt.  W.  B.,  2  B.  &  S.  419  ;  8  Jur.  (N.  S.),  1076. 
8  Anderson  f .  Northeastern  Rw.,  4  L.  T.  (N.  S.),  216. 


BAGGAGE.  165 

will  not  be  responsible  for  any  package  exceeding- 
the  value  of  £10.'  " 

"  Oh,  but  I  did  not  read  that." 

"  The  legal  inference,  however,  is  that  you  did 
read  it,  and  did  assent  to  it ;  and  so  I  am  afraid 
that  the  company,  in  case  of  a  loss,  will  not  be 
liable  as  your  goods  exceed  the  prescribed  limit.1 
For  the  same  reason  they  may  also  be  excused  for 
delay  in  redelivering  them,  at  least  if  such  tardi 
ness  is  not  caused  by  any  wilful  act  or  default  of 
their  own,  and  is  without  their  privity  or  knowl 
edge.2  Samples  and  patterns  are  not  considered 
personal  baggage."  3 

"  Many  thanks  for  all  your  information.  1  think 
I  can  see  my  box  through  this  crack,  and  here 
comes  the  man  with  the  key  ;  so  I  am  all  right." 

"  Well,  good-by !  there  's  my  train,  anyway,  so 
I  am  off.  Don't  forget  you  owe  me  a  fee  for  this." 

As  I  was  passing  into  the  car,  I  saw  a  crowd 
gathered  round  the  ticket-office,  and  an  unfortu 
nate  man — quite  respectably  habited  —  strug 
gling  in  the  clutches  of  a  policeman.  I  made  in 
quiries  as  to  the  cause  of  the  arrest  and  was  told 
that  the  prisoner  had  been  buying  a  ticket  at  the 
office,  and  in  giving  change  the  clerk  handed  him 
two  sous,  a  French  piece;  the  man,  whose  name 

1  Van  Toll  v.  Southeastern  Rw.  Co. ,12  C.  B.  (N.  S.),  75;  6L.  T.(N.  S.),244; 
Harris  v.  G.  W.  R.,  W.  N.  June  10, 1876 ;  but  see  Henderson  v.  Stevenson,  L 
R.,  2  S.  &  D.  470. 

2  Pepper  v.  Southeastern  Rw.  Co.,  17  L.  T.  (N.  S.),  469. 
s  Bay  ley  v.  Lancaster  Rw.  Co.,  18  Sol.  J.  301. 


166  BAGGAGE. 

was  Allen,  objected  and  demanded  a  British  penny 
in  its  place,  and  as  the  clerk  would  not  take  back 
the  sous,  Allen  determined  to  help  himself.  The 
bowl  of  the  till  containing  copper  coins  appearing 
to  be  within  easy  reach  he  put  in  his  hand  to  get 
the  money.  Upon  this  the  agent  raised  the  hue 
and  cry,  summoned  the  conservator  of  the  peace 
on  duty  and  gave  A.  into  custody  on  the  charge 
of  attempting  to  rob  the  till.  It  seemed  rather  a 
hard  case,  as  the  poor  fellow  was  only  trying  to 
help  himself  to  his  change.  (Being  dubious  as  to 
what  would  be  the  upshot  of  the  affair  I  bore  the 
matter  in  mind,  and  after  the  usual  time  required 
for  issuing  a  writ,  bringing  a  case  to  trial,  moving 
in  term  and  giving  judgment,  I  discovered  that  in 
the  action  brought  by  A.  against  the  company  for 
false  imprisonment  it  was  held,  that  as  the  arrest, 
after  the  attempt  had  ceased,  could  not  be  neces 
sary  for  the  protection  of  the  company's  property, 
but  was  merely  to  vindicate  justice,  the  clerk  had 
no  implied  authority  to  arrest  the  man;  his  au 
thority  only  extended  to  the  doing  of  such  acts  as 
were  necessary  for  the  fulfillment  of  the  duties  en 
trusted  to  him,  and  that  the  company  was,  there 
fore,  not  liable  for  the  act  of  the  clerk,  nor  for  that 
of  the  policeman  who  took  A.  into  custody.  Black 
burn,  J.,  was  inclined  to  think  that  if  a  man  in 
charge  of  a  till  were  to  find  that  a  person  was  at 
tempting  to  rob  it,  and  he  could  only  prevent  his 
stealing  by  taking  him  into  custody,  he  might 


BAGGAGK.  1G7 

have  an  implied  authority  to  arrest  the  offender '; 
or,  if  the  clerk  had  reason  to  believe  that  the 
money  had  been  actually  stolen  and  he  could  get 
it  back  by  taking  the  thief  into  custody,  and  he 
took  him  up  for  that  purpose,  it  might  be  that  that 
also  would  be  within  the  authority  of  the  clerk.1) 

A  man  standing  by  me  asked  how  it  was  that 
the  policeman  had  not  on  the  same  style  of  gar 
ments  as  those  of  his  fellows  who  perambulate  in 
blissful  ease  and  quiet  serenity  the  city  streets.  I 
told  him  that  railway  companies  had  power  to  ap 
point  constables  to  act  on  their  lines  for  the  pres 
ervation  of  peace,  and  securing  persons  and  prop 
erty  against  felonies  and  other  unlawful  acts  on 
such  railways  and  their  works,  and  in  all  places 
not  more  than  a  quarter  of  a  mile  distant  there^- 
from,  and  to  take  before  a  justice  of  the  peace  any 
person  guilty  of  an  offence  punishable  by  summary 
convictions  under  any  act  or  by-law.2 

This  time  I  had  my  impedimenta  checked,  and 
thus  was  relieved  of  the  trouble  of  carrying  them 
in  and  out  of  the  car.  All  the  world  knows  that 
the  possession  of  a  check  is  evidence  against  the 
company  of  the  receipt  of  the  baggage.  The  piece 
of  metal  has  been  compared  to  a  bill  of  lading,  in 
fact  said  to  be  identical  therewith.3  It  is  always 
the  source  of  great  wonderment  to  me  that  the 
British  public  do  not  insist  upon  the  British  rail- 

1  Allen  v.  London  &  S.  W.  Rw.,  L.  R.,  6  Q.  B.  65. 

2  Railway  Act,  1868,  §  49. 

s  Dill  v.  Railroad  Co.,  7  Rich  158. 


168  BAGGAGE. 

ways  introducing  the  system  on  their  lines;  thvi 
continental  plan  of  registering,  though  far  in  ad 
vance  of  the  English,  is  still  much  more  trouble 
some  than  the  simple  process  of  checking,  and 
very  expensive.  How  convenient  is  our  enlight 
ened  plan,  when  one  has  to  change  cars  en  route  : 
no  trouble  looking  after  baggage  ;  one  simply  has 
to  walk  out  of  one  train  into  the  other,  ticket  for 
£he  whole  journey  and  checks  in  your  pocket,  and 
if  your  traps  are  lost,  you  can  sue  either  or  any  of 
the  companies.1 

The  car  being  rather  crowded,  the  atmosphere 
soon  became  rather  close  and  stifling.  A  gentle 
man,  after  a  considerable  amount  of  coaxing,  push 
ing,  shoving,  and  pulling,  persuaded  one  of  the 
windows  to  allow  itself  to  be  lifted  up  to  admit 
the  sharp,  clear,  exhilarating  winter's  air.  The 
person  who  opened  the  window  got  out  and  another 
got  in  and  took  his  seat  beside  it,  and  carelessly 
alloAved  his  left  hand  to  rest  on  the  ledge.  As  the 
train  approached  a  station,  the  breaks  were  sud 
denly  put  on,  and  the  vibration  caused  the  window 
to  fall  athwart  the  man's  fingers,  inflicting  a  seri 
ous  injury  thereon.  Aroused  and  attracted  by  the 
grunting  and  groaning,  adjurations  and  exclama 
tions  of  the  injured  one,  some  officious  people  came 
round  him,  advising  and  urging  the  poor  fellow  to 
sue  the  company,  for  that  they  were  bound  to  pro 
vide  windows  with  good  fastenings  for  the  comfort 

1  Hart  r.  Rensellaer  &  Saratoga  R\v.,  4  Sold.  37. 


BAGGAGE.  169 

and  protection  of  passengers.  I  merely  said,  that 
without  positive  proof  of  the  defective  construction 
of  the  window,  the  mere  falling  would  not  make  a 
primd  facie  case  of  negligence  against  the  com 
pany,  as  a  Mr.  Murray  found  when  he  sued  a 
London  railway  company  for  exactly  a  similar  in 
jury.1 

Some  people  seem  to  be  possessed  of  limbs  which 
do  not  appear  to  belong  to  them  of  right,  and  with 
which  they  never  seem  to  know  exactly  what  to 
do  ;  and  such  uncomfortably  constituted  mortals 
are  very  apt  to  stretch  their  heads,  or  legs,  or 
arms,  out  of  the  windows  of  railway  carriages, 
having  no  other  improper  place  to  put  them  when 
travelling  by  rail ;  to  such  eccentric  genii  Iw would 
remark,  that  if  they  are  injured  while  in  this  posi 
tion,  they  will  not  be  able  to  recover  damages 
against  the  company,  for  the  negligence  is  their 
own,  and  the  company  is  not  bound  to  put  bars 
across  its  carriage  windows  as  careful  matrons  do 
over  their  nursery  panes.2  It  was  once  held  that 
a  company,  in  order  to  save  the  upper  extremities 
of  their  passengers,  was  bound  to  provide  wire 
gauzes,  bars,  slats,  or  other  barricades  for  the 
windows,3  but  this  fatherly  decision  has  been  over 
ruled.4  Mrs.  Holbrook  found  this  to  her  cost 

1  Murray  v.  Metropolitan  District  Rw.,  27  L.  T.  (N.  S.),  762. 

2  Indianapolis  &  Cincinnati  Rw.  v.  Rutherford,  7  Am.  Law  Reg.  (N.  S.), 
476. 

3  N.  .7.  R.  v.  Kennard,  21  Penn.  St.,  203. 

*  P.  &  C.  Rw.  r.  McClurg,  7  Am.  Law  Reg.  (N.  S.),  277 ;  Pittsburgh,  etc., 
Rw.  v.  Andrews,  39  Md.  329. 


170  BAGGAGE. 

when  she  had  her  arm  broken  (it  was  projecting 
from  the  window)  by  something  coining  against  it 
as  they  were  passing  other  cars  on  another  track.1 
In  the  State  where  the  principles  of  brotherly 
love  prevail,  or  are  supposed  to,  it  was  held  that 
when  passengers  are  liable  to  have  their  arms,  if 
lying  outside  the  windows,  caught  in  passing 
bridges,  the  conductors  should  give  them  notice  to 
put  them  effectually  upon  their  guard,  or  the  com 
pany  will  be  liable  for  injuries,  and  printed  notices 
are  not  sufficient.2 

Talking  about  squeezing  fingers  —  a  decidedly 
unpleasant  thing  to  the  squeezee,  when  not  done 
by  the  human  hand  divine  —  railway  officials  are 
not  allowed,  as  a  rule,  to  apply  extempore  thumb 
screws  and  pinch  a  man's  digits  in  the  door.  This 
has  been  solemnly  decided  by  the  Court  of  Com 
mon  Pleas,  at  Westminster  Hall.  One  Ford- 
ham  was  in  the  act  of  getting  into  a  railway 
carriage,  of  the  usual  English  make  with  doors 
at  the  sides  opening  outwards;  having  a  parcel 
in  his  right  hand,  he  very  naturally  placed  his 
left  on  the  open  door  to  aid  him  on  entering. 
The  guard,  without  giving  any  previous  warning, 
flung  to  the  door  with  a  slam.  F.  having  just  at 
that  moment  his  fingers  where  the  door  should 
meet  the  door-plate,  and  they  possessing  that 
quality  of  matter,  compressibility,  he  had  them 

1  Holbrook  v.  Utica  &  Sch.  Rw.,  12  N.  Y.  233. 

2  Laing  v.  Colder,  8  Pcnn.  St.  483. 


BAGGAGE.  171 

badly  crushed.  The  Court  of  Common  Pleas 
and  the  Exchequer  Chamber  thought  that  the 
guard  had  been  guilty  of  carelessness,  and  that 
Fordham  had  done  nothing  to  contribute  thereto, 
and  so  gave  the  latter  damages  against  the  rail 
way  company.1  Mr.  Jackson  made  <£50  out  of  his 
ride  from  Moorgate  Street  to  Westbourne  Park 
by  the  underground  railroad.  The  compartment 
in  which  he  was  seated  was  full,  but  at  Gower 
Street  two  more  got  in  despite  our  friend's  re 
monstrances.  At  the  next  station  others  tried  to 
enter  (the  door  having  been  opened),  but  were 
prevented  by  those  in  possession.  The  door  re 
mained  unshut  as  the  train  passed  along  the  plat 
form,  but  just  as  it  entered  the  tunnel  the  porter 
slammed  it  to,  and  jammed  Jackson's  hand  in  the 
hinge.  The  court  considered  that  all  these  facts 
showed  such  a  careless  and  improper  mode  of  con 
ducting  business  that  Jackson  was  entitled  to  keep 
the  little  sum  mentioned.2 

In  another  case,  however,  where  a  porter  after 
he  had  called  out,  "  Take  your  seats  —  take  your 
seats  !  "  squeezed  a  man's  thumb  in  shutting  to  the 
door,  the  same  court  considered  that  the  official  had 
closed  the  door  in  the  ordinary  and  proper  exercise 
of  his  duty,  and  that  Mr.  Richardson  had  only 
to  thank  himself  for  his  want  of  caution  in  leav- 

1  Fordham  v.  L.  B.  &  S.  C.  Rw.,  L.  R.,  3  C.  P.  368  ;  4  C.  P.  619  (Ex.  Ch.) ; 
also,  Coleman  v.  S.  E.  Rw.,  4  H.  &  C.  699. 

2  Jackson  r.  Metropolitan  Rw.,  L.  R.,  10  C.  P.  49. 


172  BAGGAGE. 

ing  his    member   where    it  might   be   so   easily 
crushed.1 

To  return  from  this  digression,  which  my  read 
ers  will  probably  have  found  as  dull  and  heavy 
as  most  wanderings  of  that  nature.  Before  many 
hours  had  passed,  thick  heavy  clouds  began  to 
scud  across  the  sky ;  the  wind  sighed  and  moaned 
mournfully  around  the  car  ;  Boreas  came  raging 
from  the  icy  regions  of  the  North,  and  the  snow- 
flakes  whirled  wildly  in  ever-thickening  clouds  — 
as  a  Longfellow  would  have  said  had  he  been  on 
board  that  express  train  :  — 

Ever  thicker,  thicker,  thicker, 
Froze  the  ice  on  lake  and  river  : 
Ever  deeper,  deeper,  deeper, 
Fell  the  snow  o'er  all  the  landscape, 
Felt  the  covering  snow  and  drifted 
Through  the  forest,  round  the  carriage. 

Slowly  and  more  slowly  did  the  laboring  engine, 
laden  with  its  long  line  of  cars,  make  its  way 
against  the  obstructing  showers  of  feathery  ice- 
morsels,  and  fears  arose  in  the  hearts  of  the  pas 
sengers  that  our  progress  would  soon  be  entirely 
stopped  and  we  would  be  left  to  spend  the  long 
cold  night  imbedded  in  the  rapidly  rising  banks  of 
snow. 

A  lady,  shivering  as  she  gazed  out  into  the  now 
pitchy  darkness,  asked  me  in  quivering  tones, 
what  would  'be  done  if  we  came  to  a  complete 
standstill  and  the  engine  was  unable  to  move  at 
all  ?  I  replied  :  - 

1  Richardson  v.  Metropolitan  Rw.,  L.  R.,  3  C.  P.  374,  n. 


BAGGAGE.  173 

"  If  a  line  becomes  blocked  up  and  impeded  by 
snow,  the  company  is  bound  to  use  all  reasonable 
exertions  to  forward  the  passengers,  although  that 
may  put  the  company  to  extra  expense  which  of 
course  they  have  no  way  of  recovering  from  the 
travellers;1  so  I  presume  ere  long  extra  engines 
and  snow  ploughs  will  come  to  our  rescue." 

"  It  is  to  be  hoped  that  the  fuel  will  last,"  said 
the  lady.  "  How  I  pity  those  poor  cattle  that  we 
heard  lowing  so  plaintively  as  we  passed  them  at 
the  last  siding,"  she  added  tenderly. 

"  Yes  ;  no  great  efforts  will  be  made  for  their 
convenience ;  if  a  snow-storm  comes,  the  company 
is  not  bound  to  forward  them  by  extraordinary 
means  and  at  additional  expense." 

"  Poor  things,"  said  my  fair  companion,  who 
seemed 

A  very  woman ;  full  of  tears, 

Hopes,  blushes,  tenderness,  fears, 

Griefs,  laughter,  kindness,  joys,  and  sighs, 

Loves,  likings,  friendships,  sympathies; 

A  heart  to  feel  for  every  woe, 

And  pity,  if  not  dole,  bestow. 

"  Poor  things,  unless  in  the  hereafter  there  is  a 
place  where  the  spirits  of  animals  be  at  rest,  they 
have  to  bear  a  very  heavy  share  of  the  primeval 
curse,  and  pay  dearly  for  Adam's  transgression 
and  fall." 

1  Addison  on  Torts,  3d  ed.  448. 

2  Briddon  v.  Gt.  Northern  Rw.,  28  L.  J.,  Ex.  51. 


174  DUE    CARE. 


CHAPTER   XII. 

DUE    CAKE. 

Snowed  up.— Pacific  Railway. —Passenger  Carriers  not  Insurers.  — 
Company  must  use  Due  Care.  —  Defective  Machinery.  —  Broken 
Axle.  — Company  must  account  for  Accident.  — Difference  between 
Goods  and  Men.  —  What  is  Due  Care.  —  Latent  Defects  in  Cars.  — 
English  Rule.  — Rule  in  New  York. —Moralizing. —  Railroad 
Death-rate. 

As  the  train  came  to  a  solemn  pause  in  a  deep 
cutting  a  number  of  us  gathered  together  in  the 
warm  and  cosy  Pullman,  the  ne  plus  ultra  of  rail 
way  cars,  far  surpassing  in  comfort  and  luxury  an 
English  or  Continental  first-class  carriage,  though 
not  adorned  as  are  the  Italian  cars  with  those 
abominations  of  the  sterner  sex — tidies  for  the 
head  to  rest  against.  And  here,  each  in  turn  re 
lated  railroad  adventures  and  accidents;  tales 
which  excited  laughter  and  joyous  merriment,  of 
engagements,  love  scenes,  marriage  ceremonies, 
undress  exhibitions  in  sleeping  cars ;  tales  of  sor 
row  and  grief,  collisions,  explosions,  helpless  peo 
ple  crushed,  boiled,  roasted  to  death ;  dozens 
plunged  into  eternity  in  a  moment  by  the  simple 
derangement  of  a  switch,  the  starting  of  a  rail,  a 
flaw  in  a  wheel,  a  sleepy  pointsman,  or  a  weary 
telegraph  clerk. 


DUE    CAKE.  175 

One  told  that,  in  India,  railroad  traffic  is  seri 
ously  affected  by  the  stagnation  of  the  matrimonial 
market,  a  wedding  there  being  an  occasion  of 
great  pomp  and  the  gathering  together  of  friends ; 
that  the  railways  are  breaking  down  the  castes, 
as  the  conductors  tumble  into  the  same  car  prond, 
lofty,  blue-blooded  Brahmins,  poor  despised  Pari 
ahs,  blood-thirsty  Thugs,  sun- worshipping  Parsees, 
and  learned  Mussulmans  ;  and  go  together  these 
must,  notwithstanding  the  dogmas  of  Shasters, 
Vedas,  and  Korans,  or  else  jump  out  and  die. 
Another  told  of  having  found  nuggets  of  gold,  the 
remains  of  melted  jewelry,  among  the  charred 
and  blackened  remains  of  unfortunates  consumed 
at  the  Komoka  (Out.)  accident.  While  a  third 
in  graphic  terms  described  the  efforts  made  to 
break  through  a  snow  blockade  on  the  Central 
Pacific  ;  the  snow  was  a  solid  mass  twenty  feet 
high  in  front  of  the  plough  ;  ten  engines  were  at 
work  ;  they  backed  up  about  a  mile,  then  revers 
ing  made  a  spring  forward,  locomotives  shrieking 
and  screeching,  men  yelling  and  gesticulating, 
volumes  of  smoke  pouring  forth  from  every  funnel 
and  hanging  like  a  pall  over  the  scene  ;  the  loud 
-rumbling  of  the  huge  iron-beaked  monster  flying 
over  the  track,  the  hissing,  roaring  din  and  the 
chorus  of  shrieking  demons  behind  made  up  a 
scene  that  would  blanch  the  boldest  cheek.  With 
the  force  of  a  thousand  giants  the  plough  rushed 
upon  the  snow  and  hurled  it  in  enormous  masses, 


176  DUE    CARE. 

like  mighty  billows,  down  the  mountain  sides, 
crushing  through  the  lofty  pines,  and  glistening 
and  gleaming  like  frosted  silver  as  it  fell  upon  the 
frozen  cataract  below  ;  but  the  charge  was  well 
nigh  in  vain. 

Thus  with  the  flow  of  reason  and  the  feast  of 
soul  passed  some  weary  hours.  At  last,  one  gen 
tleman  turning  to  me,  said  :  — 

"  I  believe  that  a  carrier  of  goods  is  liable  for 
his  freight  in  every  event  ;  is  a  carrier  of  passen 
gers  responsible  to  the  same  extent  ?  " 

"  No,"  I  responded,  "  all  jurists  are  agreed  that 
railway  companies  are  only  liable  for  negligence, 
either  proximate  or  remote,  and  not  for  injuries 
happening  to  passengers  from  unforeseen  accident 
or  misfortune,  where  there  has  been  no  negligence 
or  default  on  the  part  of  the  carrier ; l  still  it  is 
the  bounden  duty  of  a  company  to  use  due  and 
proper  care  and  skill  in  conveying  travellers  ;  and 
this  duty  laid  upon  them  does  not  arise  from  any 
contract  made  between  the  company  and  the  per 
sons  conveyed  by  them,  but  is  one  which  the  law 
imposes.  If  railways  are  bound  to  carry,  tfiey  are 
also  bound  to  carry  safely  ;  it  is  not  sufficient  for 
them  to  bring  merely  the  dead  body  of  their  pas 
senger  to  the  end  of  the  journey,  and  there  deliver 
up  the  remains,  parboiled  or  cut  into  sausage 
meat,  to  his  executors  and  administrators.2  The 

i  Aston  v.  HeaYen,  2  Esp.  533 ;  Frink  v.  Potter,  17  111.  406. 
*  Collett  v.  London  &  N.  W.  Rw.,  16  Ad.  &  Ell.  (N.  S.),  984. 


DUE    CARE.  177 

fact  that  injury  is  suffered  by  any  one  while  upon 
the  company's  train,  as  a  passenger,  through  any 
failure  of  the  means  of  safe  transportation,  is  re 
garded  as  primd  facie  evidence  of  their  liability  ; 1 
and  such  evidence,  if  not  rebutted  by  the  com 
pany,  will  justify  a  verdict  against  them  which  a 
court  will  not  set  aside."  2  And  having  delivered 
myself  of  this  harangue,  I  looked  around  with  a 
self-satisfied  air  and  rubbed  my  hands  with  in 
visible  soap,  in  imperceptible  water,  a  la  Tom 
Hood. 

"  Yes,"  said  an  engineer,  "  a  company  is  bound 
to  use  the  best  precautions  in  known  practical  use 
to  secure  the  safety  of  their  passengers,3  but  not 
every  possible  preventive  which  the  highest  scien 
tific  skill  might  have  suggested,4  nor  every  device 
which  ingenuity  might  imagine.5  But  it  appears 
hard  that  a  company  should  be  held  liable  —  as 
they  have  been  — for  injuries  arising  from  a  crack 
in  the  axle  of  a  car  indiscoverable  by  any  practi 
cal  mode  of  examination,6  and  be  bound  to  provide 
road  worthy  carriages,  absolutely  and  irrespectively 
of  negligence," 

"  Yes,  that  is  the  rule  in  New  York  State,  but 


1  Denman,  C.  J.,  in  Carpue  v.  London  &  B.  Rvv.,  5  Q.  B.  747 ;  Laing  r. 
Colder,  8  Penn.  St/479-483. 

2  Dawson  v.  Manchester  S.  &  L.  Rw.,  5  L.  T.  (N.  S.),  682 ;  but  see  Hammock 
f.  White,  11  C.  B.  (X.  S.),  587. 

3  liegeman  v.  West.  Rw.  Corp.,  16  Barb.  353. 

*  Ford  v.  London  &  S.  W.  R.,  2  F.  &  F.  730,  per  Erie,  C.  J. 
6  Baltimore  &  Ohio  Rw.  v.  State,  29  Md.  252. 

*  Alden  r.  N.  Y.  Central  Rw..  23  N.  Y.  102. 
W.  &  R.  OF  T.— 12 


178  DUE    CARE. 

it  has  been  somewhat  questioned  in  later  cases, 
and  in  fact  it  was  laid  down  that  a  company  is 
not  responsible  for  injuries  caused  by  vis  major, 
as  the  breaking  of  a  rail  through  extreme  cold.'7 1 

"  Wai,  strangers,"  quoth  a  regular  long,  lean, 
lanky  down-easter,  "  look  ye  liar,  down  in  my 
State,  a  carrier  is  bound  to  use  the  highest  degree 
of  care  that  a  reasonable  man  would  use."  2 

44  That  is  substantially  the  same  as  the  rule  in 
the  English  cases,"  I  said,  "  and  has,  I  believe, 
been  followed  in  most  of  the  States,  and  in  the 
United  States  Supreme  Court."  3 

44 1  presume,"  said  the  machinist;  "  companies 
are  liable  for  defects  in  their  cars  whether  they 
manufacture  them  or  purchase  them  ?  " 

"  Oh  yes,"  I  rejoined,  u  the  companies  are  alike 
bound  to  see  that  in  the  construction  no  care  or 
skill  has  been  omitted  for  the  purpose  of  making 
their  engines  and  cars  as  safe  as  care  and  skill  can 
make  them."4 

44 1  remember,"  spake  the  man  of  science,  44  hear 
ing  of  one  case  where  the  engine  ran  off  the  track, 
and  it  was  found  that  a  fore-axle  was  broken,  but 
no  evidence  was  given  as  to  whether  the  accident 
caused,  or  was  caused  by,  the  breakage ;  yet  a 
traveller  who  had  his  shoulder  contused,  and  his 


1  McPadden  v.  N.  Y.  C.  Rw.,  44  N.  Y.  478  ;  47  Barb.  247. 

2  13  Conn.  326. 

s  Redfield  on  Railways,  vol.  ii.,  222  n. 

•*  Ilogeinan  r.  Western  Rw.,  16  Barb.  353,  affirmed  by  Court  of  Appeals,  13 
N.  Y.  9. 


DUE    CARE.  179 

a 


hat  crushed,  and  was  rendered  insensible  for 
time  and  sick  for  a  longer  period  by  the  accident, 
recovered  a  large  sum  against  the  company.1    And 
in   another  English    case2  an  accident   happened 
from  the   breaking  of  the  tire  of  a  driving-wheel; 
the  defect  could  not  have  been  discovered  by  the 
original  testing,  but  might  have  been  if  it  had  been 
repeated  when  the  tire  was  returned  after  being 
considerably  worn.    The  company  was  held  liable. 
And  so  where  the  defect  might  have  been  discov 
ered  when  the  car  was  mended,  and  it  was  sent  on 
without  being  thoroughly  examined  and  repaired." J 
"  Yes,"  said  one  who  had  not  yet  spoken,  "  I 
was  on  a  jury  in  a  case  against  the  Great  Western 
of  Canada.    The  axle  of  the  tender  had  broken,  and 
the  tender  and  a  car  went  off  the  track,  and  a  man 
who  was  in  the  car  had  his  arm  broken.     At  the 
trial    the    company    proved   by    the    engineer    in 
charge  of  the  train,  that  he  had  examined  the  axle 
shortly  before  the  accident  and  that  all  appeared 
in  good  order.     The  judge  charged    in    favor  of 
the    defendants,  but  we  found    a   verdict    for  the 
plaintiff,  which  the  court  refused  afterwards   to 
interfere  with,  as  we  were  the  proper  judges  as  to 
whether  or  not  there  had  been  negligence  on  the 
part  of  the  company."  4 

1  Dawson  r.  Manchester  L.  &  L.  Rw.,  5  L.  T.  (N.  S.),  682 ;  see  also,  Skinner 
v.  London  B.  &  S.  C.  Rw.,  5  Ex.  787;  Carpue  v.  Same,  5  Ad.  &  E.  (N.  S.), 
747  ;  Bird  «.  Gt.  Northern  Rw.  28  L.  J.,  Ex.  3. 

2  Manser  v.  Eastern  Counties  Rw.,  3  L.  T.  (N.  S.),  585,  Exch. 

3  Richardson  v.  G.  E.  R.,  L.  R.,  10  C.  P.  486;  reversed  on  appeal,  W.  N. 
May  20, 1876. 

*  Thatcher  v.  Gt.  W.  R.,  4  U.  C.  C.  P  543. 


180  DUE    CARE. 

"  I  think  that  it  was  in  that  case  that  Chief 
Justice  Macaulay  remarked,  that  the  accident 
having  happened  unaccountably,  and  without  any 
proximate  or  active  cause  to  account  for  it,  consti 
tuting  as  the  cases  say  some  evidence  of  negli 
gence,  it  rested  with  the  company  to  explain  and 
reconcile  it  with  perfect  innocence  on  their  part. 
It  has  been  held,  too,  in  England,  that  the  plain 
tiff  is  not  bound  to  show  specifically  in  what  the 
negligence  of  the  company  consisted  ;  but  that  if 
some  inevitable  fatality  caused  the  accident,  it  is 
for  the  company  to  prove  it. 1  In  New  York,  too, 
the  same  view  is  taken."  2 

"  Wai,  stranger,  what  is  yer  law  about  this  yer 
in  the  old  country  ?  Not  that  I  care  three  shakes 
of  a  dead  possum's  tail  about  the  old  country,  and 
all  yer  lawyers  and  judges  with  their  horse-tail 
wigs,  but  still  I  calkerlate  I  kind  o'  like  to  know 
what  they  do  say  on  this  here  point ;  as  it  appears 
to  me  that  the  great  Amerikin  eagle  has  got  rather 
mixed  up."  And  to  add  emphasis  to  his  query, 
our  friend  of  the  land  of  wooden  nutmegs  fired 
from  between  his  teeth  a  perfect  feu  dejoie  of  ex 
tract  of  nicotine. 

Thus  appealed  to,  I  cleared  my  throat,  pulled 
up  my  shirt-collar,  crossed  my  legs,  assumed  as  au 
thoritative  an  expression  of  countenance  as  Dame 
Nature  ever  permits  me  to  do,  and  thus  began :  — 

1  Skinner  v.  London  B.  &  S.  C.,  5  Ad.  &  E.  (N.  S.),  747. 
»  McPadden  v.  N.  Y.  C.,  44  N.  Y.  478. 


DUE    CARE.  181 

•'  So  long  ago  as  the  clays  of  Sir  James  Mansfield 
it  was  held l  that  there  is  a  decided  difference  be 
tween  a  contract  to  carry  goods  and  one  to  carry 
passengers.  In  the  former  case  the  carrier  is  lia 
ble  for  his  freight  in  any  event,  but  he  does  not 
warrant  the  safety  of  his  passengers.  His  under 
taking  as  to  them  extends  no  further  than  this, 
that  as  far  as  human  care  and  foresight  can  go 
he  will  provide  for  their  safe  conveyance.  So,  if 
the  breaking  of  a  coach  is  purely  accidental  the 
injured  traveller  will  have  no  remedy  for  the  mis 
fortune  he  has  encountered.  The  contract  made 
by  a  general  carrier  of  passengers  is  to  take  due 
care  to  carry  his  living  freight  safely  ;  and  it  does 
not  amount  to  a  warranty  that  the  carriage  or  car 
shall  be  in  all  respects  perfect  for  its  purpose,  i.  e., 
free  from  all  defects  likely  to  cause  a  catastrophe, 
although  those  defects  were  such  that  no  skill,  care, 
or  foresight  could  have  detected  their  existence.2 
The  obligation  to  use  all  due  and  proper  care  is 
founded  on  reasons  obvious  to  any  one  with  a 
semi-optic  ;  but  to  impose  on  the  carrier  the  bur 
den  of  a  warranty  that  everything  he  necessarily 
uses  is  absolutely  without  spot  or  blemish  and  free 
from  defects  likely  to  cause  peril —  when  from  the 
nature  of  things  defects  must  exist  which  no  skill 
can  detect,  and  the  effects  of  which  no  care  or 
foresight  can  avert  —  would  be  to  compel  a  man 

*  Christie  v.  Griggs,  2  Camp.  79. 

2  Readhead  r.  Midland  Rw.,  L.  R.,4  Q.  B.  379,  Ex.  Ch. ;  alsoj  L.  R.,  2  Q.  B. 
412,  and  the  cases  therein  cited. 


182  DUE    CARE. 

by  implication  of  law  and  not  by  his  own  will  to 
promise  the  performance  of  an  impossible  thing, 
and  would  be  directly  opposed  to  the  maxims  of 
law, '  Lex  non  cogit  ad  impossibilia,'  4  Nemo  tene- 
tur  ad  impossibilia.'  [Here  the  audience  coughed.] 
4  Due  care,'  however,  undoubtedly  means  (having 
reference  to  the  nature  of  the  contract  to  carry) 
a  high  degree  of  care,  and  casts  on  carriers  the 
duty  of  exercising  all  vigilance  to  see  that  what 
ever  is  required  for  the  safe  conveyance  of  their 
passengers  is  in  fit  and  proper  order.  But  the 
duty  to  take  due  and  proper  care,  however  widely 
construed,  however  vigorously  enforced,  will  not, 
as  that  man  Readhead  sought  to  do,  subject  a 
railway  company  to  the  plain  injustice  of  being 
compelled  by  law  to  make  reparation  for  a  disaster 
arising  from  a  latent  defect  in  the  machinery  which 
they  are  obliged  to  nse,  which  no  human  skill  or 
care  could  have  prevented  or  detected,  or  eye  de 
scried  unless  of  l  the  patent  double  million  mag- 
nifyin'  gas  microscopes  of  hextra  power  kind'  to 
which  Mr.  Weller,  Jr.,  refers.  In  that  case,  the 
accident  was  caused  by  the  breaking  of  the  tire  of 
one  of  the  wheels  of  the  carriage,  owing  to  a 
latent  defect  in  it,  which  was  not  attributable  to 
any  fault  on  the  part  of  the  manufacturers,  nor 
was  it  discoverable  previously  to  the  breakage. 
The  rule  laid  down  in  that  case  (Readhead's) 
seems  to  be  that  although  the  carrier  of  passen 
gers  may  be  responsible  for  deficiencies  caused  by 


DUE    CARE.  183 

want  of  skill  or  care  in  the  manufacture  of  the 
carriages  used,  he  is  not  to  be  so  held  when  the 
defect  could  not  have  been  avoided  in  the  making, 
or  detected  on  examination.  It  is  so  extremely 
improbable  that  such  a  case  should  happen,  that 
the  practical  difference  between  this  and  the  New 
York  rule  of  absolute  responsibility1  is  not  of  much 
importance,  although  the  theoretical  difference  is. 
But  the  rule  in  New  York  does  not  seem  to  be  fully 
approved  of  even  on  this  side  of  the  Atlantic.2 
The  truth  seems  to  be  that  carriers  of  persons 
must  be  held  to  the  utmost  degree  of  care,  vigi 
lance,  and  precaution,  but  not  to  such  a  degree  of; 
vigilance  as  would  be  wholly  inconsistent  with  the 
mode  of  conveyance  adopted  and  render  it  im 
practicable.  Nor  is  the  utmost  degree  of  care 
which  the  human  mind  is  capable  of  imagining 
required.  Such  a  rule  would  require  such  an  ex 
penditure  of  money  and  employment  of  hands  so 
as  to  render  everything  safe,  as  would  prevent  all 
persons  of  ordinary  prudence  from  engaging  in 
that  kind  of  business.  But  the  rule  does  necessi 
tate  that  the  highest  degree  of  practicable  care 
and  diligence  that  is  consistent  with  the  mode  of 
transportation  adopted,  should  be  used."  3 

I  stopped ;  one  universal   sigh  of   relief  uprose 

1  Alden  v.  New  York  Central  Rw.,  26  N.  Y.  102. 

2  McPadden  v.  N.  C.,  44  N.  Y.  478  ;  Meier  v.  Perm.  Rw.,  64  Perm.  St.  225, 
and  Ingalls  v.  Bills,  9  Met.  1,  where  the  court  said,  "  If  the  injury  arise 
from  some  invisible  defect  which  no  ordinary  test  will  disclose,  the  carrier 
is  not  liable.'' 

Her  v.  Talbot,  23  111.  357. 


184  DUE    CARE. 

from  those  of  my  listeners  who  were  not  nodding 
approvingly  from  the  borders  of  Dreamland.  The 
Yankee  said :  — 

"  Wai,  stranger,  that  was  a  yarn.  I  guess  I  '11 
go  and  have  a  smoke,  and  see  if  I  can  calkerlate 
what  in  blazes  you  did  mean  by  till  that  long 
pow-wow."  And  he  departed. 

"  I  think,"  said  the  juror,  "  that  the  law  ought 
to  be  the  most  stringent  possible  in  order  to  put  a 
stop  to  such  barbarous  and  inhuman  sacrifice  of 
multitudes,  such  horrible  mangling  of  bodies  and 
limbs,  such  frightful  cases  of  burning  alive  and 
scalding  to  death  that  have  occurred  so  frequently 
of  1*." 

"  Yes,  I  hope  that  the  day  is  not  very  far  dis 
tant  when  all  our  courts  will  hold,  that  all  who 
undertake  the  transportation  of  passengers  by  the 
dangerous  element  of  steam,  and  with  the  great 
speed  of  railway  trains,  are  responsible  for  the  use 
of  every  precaution  \vhich  any  known  skill  or  ex 
perience  has  yet  been  able  to  devise,  and  that 
passengers  need  not  judge  for  themselves  how 
many  of  these  precautions  it  is  safe  to  forego." 

"  But,"  urged  another,  "  people  now-a-days 
wish  cheap  and  rapid  travelling  in  all  directions 
and  everywhere." 

"  Suppose  they  do  ;  we  do  not  allow  monoma 
niacs  or  brigands  to  commit  suicide  or  murder 
without  interference,  because  it  is  their  pleasure 

l  Redfield  on  Railways,  vol.  ii.,  p.  237. 


DUE    CARE.  185 

or  their  interest  to  do  so ;  and  I  see  no  good  rea 
son  why  railway  passengers  or  railway  managers 
should  be  allowed  to  roast  a  hecatomb  in  human 
sacrifice,  because  it  seems  desirable  or  convenient 
to  the  one  or  the  other  class  concerned  in  the  im 
molation,  or  because  the  one  class  demands  and 
the  other  consents,  to  use  a  mode  of  transportation 
which  inevitably  produces  these  results." 

"  Ah,"  said  a  lady,  "  I  fear  these  dreadful  acci 
dents  will  continue  until  every  train  is  compelled 
to  carry  a  director  of  the  company,  or  a  general 
manager,  upon  the  cow-catcher ;  experience  will 
then  soon  induce  them  to  be  a  little  more  careful 
of  the  bodies  and  lives  of  others." 

"  But,  sir  !  "  said  the  scientific  gentleman,  a 
precise  man  of  figures,  "  I  fear  you  exaggerate 
when  you  speak  of  hecatombs  of  sacrifices.  I  be 
lieve  that  in  proportion  to  the  numbers  carried 
the  accidents  to  passengers  in  the  good  old  days  of 
stage-coaches  were,  as  compared  with  these  days 
of  railway  dispensation,  about  as  sixty  to  one. 
Reliable  statistics  in  France  prove  this.  Figures, 
which  you  know  are  proverbial  for  their  truth, 
show  that  absolutely  more  travellers  were  yearly 
killed  and  injured,  without  fault  of  theirs,  fifty 
years  ago  on  stage-coaches,  than  are  now  killed 
on  the  cars.  According  to  the  Report  of  the 
Board  of  Trade  of  Great  Britain  and  Ireland,  out 
of  all  the  480,000,000  of  journeys  taken  by  pas- 

i  Redfield  on  Railways,  vol.  ii.,  p.  238. 


186  DUE    CARE. 

sengers  by  rail  in  the  British  Isles  in  1874,  only 
212  people  were  killed,  and  1,990  injured  not 
fatally ;  so  that  you  can  easily  see  only  one  soli 
tary  traveller  was  killed  to  every  2,274,881  who 
followed  in  the  triumphant  train  of  the  iron  horse, 
and  only  one  injured  to  every  242,301  passengers.*' 

"  You  speak  only  of  passengers,"  said  a  listener. 
" 1  presume  far  more  employees  were  killed  dur 
ing  that  time." 

"  Certainly.  Only  212  passengers  were  killed 
that  year  while  as  many  as  788  employees  were  ; 
and  of  the  injured  ones  1,990  paid  for  the  privi 
lege,  while  2,815  were  paid  for  running  the  risk  : 
and  of  these  mangled  ones  many  had  only  them 
selves  to  blame.  Sir  John  Hawkshaw,  an  author 
ity  on  these  matters,  recently  asserted  that  rail 
way  accidents  were  fewer  now  than  ever  :  that  in 
fact,  on  an  average,  a  man  might  travel  100,000 
miles  each  year  for  forty  years,  and  the  chances 
would  be  slightly  in  favor  of  his  not  receiving  the 
smallest  scratch,  unless  he  ran  into  danger  of  his 
own  accord." 

"  You  might  almost  as  well  at  once  assert  that 
it  is  less  dangerous  to  travel  by  rail  than  to  stay 
at  home,"  I  remarked. 

"  That  very  statement  was  officially  made  in 
France  some  years  ago,  and  supported  by  the 
proof,  that  while  ten  people  were  killed  on  the  rail, 
fourteen  died  at  home  from  falling  over  carpets, 
and  having  their  garments  catch  fire." 


DUE    CARE. 


187 


"  All  that  may  be  true  enough  of  England,  or 
Europe  ;  but  I  should  think  that  it  was  widely 
different  in  America,"  I  replied. 

"  Of  course  it  must  be  admitted  that,  taken  as 
a  whole,  the  dangers  incident  to  railway  travelling 
are  materially  greater  in  America  than  in  any 
country  of  Europe.  Still  the  destruction  of  life 
and  limb  is  nothing  frightful,  —  the  wonder  rather 
is  that  so  few  are  hurt.  Perhaps  you  will  not  be 
lieve  it,  yet  the  truth  of  the  fact  remains,  that  in 
the  year  1874,  throughout  the  whole  of  Massachu 
setts,  but  one  passenger  was  killed  011  the  cars 
through  an  accident  to  which  his  own  carelessness 
did  not  contribute ;  while  in  the  same  year  of  grace, 
in  the  city  of  Boston  alone,  fifteen  people  were 
killed  from  falling  down  stairs,  twelve  by  falling 
out  of  windows,  and  seventeen  were  run  over  by 
carriages  and  fatally  injured." 

"But  perhaps,  that  was  an  exceptional  year  ! 
"  Let  us  take  four  years  then,  from  September, 
1870,  to  the  same  month  of  1874  :  in  that  time 
the  railroads  disposed  of  635  persons,  all  told,  pas 
sengers,  employees,  trespassers  •*—  in  Massachu 
setts  ;  and  in  Boston  during  the  same  years  there 
were  1,050  accidental  deaths  !  The  returns  for 
the  last  fifteen  years  show,  that  in  Massachusetts 
only  39  passengers  were  killed,  while  250  were 
injured,  but  not  fatally,  from  causes  over  which 
they  had  no  control :  that  is  less  than  one  killed 
to  each  8,900,000  travellers,  and  about  one  in  each 


188  DUE    CARE. 

1,400,000  injured.  The  statistics  for  that  State 
would  appear  to  indicate  that  if  one  chanced  to  be 
born  on  a  train  and  remained  there  travelling 
500  miles  a  day,  he  would,  with  average  good  for 
tune,  be  about  two  hundred  and  twenty  years  old 
before  being  involved  in  any  accident  resulting  in 
death,  or  personal  injury." 

"  That  is  quite  long  enough,  since  Methusaleh 
is  no  more."  1 

i  See  "  Our  Railroad  Death-rate,"  in  Atlantic  Monthly  for  February,  1876, 
by  C.  F.  Adams,  Jr. 


ACCIDENTS    TO    TRAVELLERS.  189 


CHAPTER  XIII. 

ACCIDENTS   TO   TRAVELLERS. 

Standing  on  Platforms  of  Cars.  —Room  and  Seats  to  be  Furnished.— 
Over-crowding.  —  Riding  in  Express  Cars.  —  In  Caboose  Car.  — 
Rule  in  Illinois.  —  Walking  through  the  Train.  — Innocent  Blood. — 
Damages  to  Infants  and  Juveniles.  —  Child's  Fare  Unpaid.  — $1,800 
for  a  Baby's  Leg  and  Hand.  — Negligence  of  a  Nurse.  — Travelling 
on  Free  Pass.  —Conditional  Liability.  —  Company  Exempt.  —  Pat 
and  Sambo.  —  Home  again  from  a  Foreign  Shore. 

OUR  Connecticut  friend  went  out  of  the  car  and 
stood  on  the  platform,  in  defiance  of  the  notice 
posted  up  on  the  door  forbidding  people  to  stand 
there  ;  and  gazing  out  into  the  storm  and  the 
night,  he  tried,  like  sister  Ann,  to  distinguish 
whether  there  were  any  signs  of  relief  coming  to 
us  in  our  benighted  condition.  As  he,  an  omniv 
orous,  breeches-wearing  biped,  balanced  himself  on 
his  long  slender  legs  and  stretched  forward  his  lean 
and  lank  corpus  to  look  ahead,  the  engine  gave  a 
sudden  puff  and  plunge,  Conn,  lost  his  balance 
and  fell  to  the  ground  :  the  snow  prevented  much 
damage  happening  to  his  fragile  body,  but  unfor 
tunately  his  foot  rested  partly  on  the  rail,  and  the 
wheel  of  the  car  badly  crushed  his  big  toe.  The 
violent  ear-piercing  howls  that  issued  from  his  to 
bacco-seasoned  throat  brought  assistance  very  soon, 


100  ACCIDENTS    TO    TRAVELLERS. 

and  he  was  speedily  helped  back  into  the  car  ;  his 
damaged  pedal  member  was  dressed  by  a  young 
member  of  the  ^Esculapian  fraternity  who  chanced 
to  be  on  board  and  seemed  eager  to  show  his  sur 
gical  skill. 

The  injured  man  soon  became  violent  in  his  de 
nunciations  of  the  carelessness  of  the  company,  in 
his  threats  of  vengeance  in  the  form  of  suits  for 
damages.  He  was,  however,  suddenly  checked  in 
the  outpouring  of  the  vials  of  his  wrath  by  one  of 
the  passengers  remarking :  — 

"  Perhaps  you  do  not  know  that  in  these  hyper 
borean  regions  people  can  claim  no  compensation 
for  injuries  received  while  on  the  platform  of  a  car 
(or  on  any  baggage,  wood,  or  freight  car),  in  viola 
tion  of  the  printed  regulations  posted  up  conspicu 
ously,  and  where  there  is  proper  and  ample  ac 
commodation  for  the  passengers  inside  the  car."1 

"  And  there  is  a  similar  statute  in  New  York 
State,"  added  another.2 

"  Yes,"  I  said,  "  no  one  can  recover  for  an  in 
jury  of  which  his  own  negligence  was  in  the  whole, 
or  in  part,  the  proximate  cause."  3 

"  Wai,  but  the  old  conductor  saw  me  thai*  and 
did  n't  say  nothink  agin'  it,"  quoth  the  wounded 
man. 

"  That  makes  no  difference.4     If  there  had  been 

1  Railway  Act,  1838,  s.  20,  sub-sec.  13  (Canada). 

2  Redfield  on  Railways,  vol.  ii.,  p.  252. 

3  Robinson  v.  Cone,  22  Vfc.  213 ;  Butterfield  v.  Forrester,  11  East,  60. 
*  Higgins  v.  N.  Y.  &  Harlem  Rw.,  2  Bosw.  132. 


ACCIDENTS    TO    TRAVELLERS.  191 

no  notice  up  you  might  get  something  out  of 
them."  i 

"  I  think,"  I  said,  "  that  it  has  been  held,  in 
one  case  at  least,  to  be  a  question  for  the  jury, 
whether  the  passenger  had  notice  not  to  stand  out 
side,  and  whether  the  fact  of  his  disregarding  it 
contributed  to  the  injury  ;  and  they  having  failed 
to  find  these  facts,  the  Court  of  Appeals  let  the 
plaintiff  keep  the  $10,000,  awarded  him."  2 

"  Oh,  Jee-ru-sa-lem  and  Jee-ri-cho,  I  go  in  for 
that  slick  and  quick,"  cried  the  victim  at  the  sound 
of  the  almighty  dollars. 

"  Ha-ha  ;  but  the  company,  if  you  sue  them, 
will  only  have  to  show  that  there  was  room  and 
an  unoccupied  seat  inside  the  cars  for  you.  Of 
course,  one  is  not  obliged  to  displace  either  the 
persons  or  property  of  other  passengers,  or  urge 
them  to  give  up  half  a  seat,  or  even  a  whole  one, 
needlessly  occupied  by  them  ; 3  that  is  the  duty  of 
the  conductor  ;  nor  is  one  obliged  to  sit  in  the 
smoking  car."  * 

"  But,"  asked  a  lady,  "  should  a  passenger  go 
through  all  the  train  searching  for  a  place  wherein 
to  bestow  her  weary  frame  ?  " 

"  No  ;  it  is  no  compliance  with  the  duty  of  the 
company  to  provide  proper  accommodation,  that 

1  Colcgrove  v.  N.  Y.  &  N.  II.  Rw.,  6  Duer,  382. 

2  Zemp  v.  W.  &  M.  Rw.,  9  Rich.,  84. 

3  Robinson  r.  Fitchburg  &  Worcester  Rw.,  7  Gray,  92  ;  Willis  v.  Long  Island 
Rw.,  34  N.  Y.  670  ;  Bass  v.  C.  &  N.  W.  Rw.,  36  Wis.  461. 

4  Bass  v.  C.  &  N.  W.  Rw.,  supra. 


192  ACCIDENTS    TO    TRAVELLERS. 

there  is  sufficient  room  in  a  carriage  remote  from 
the  place  where  the  passenger  was  allowed  to  en 
ter.1  C.  J.  Coleridge  once  remarked  in  the  hear 
ing  of  a  friend  of  mine,  that  there  may  be  no  neg 
ligence  in  the  company's  servants  allowing  too 
many  persons  to  get  into  a  carriage,  as  it  would  be 
difficult  at  all  times  to  prevent  it,  and  perhaps 
there  would  be  no  help  for  it  until  the  arrival  at 
the  next  station.  But  permitting  an  extra  num 
ber  to  remain  in  the  car  and  to  continue  to  impose 
undue  restraint  and  discomfort  upon  the  other  pas 
sengers  is  evidence  of  negligence ;  and  companies 
should  have  a  sufficient  number  of  attendants  at 
each  station  to  see  that  their  cars  are  not  over 
crowded."  2 

"  How  would  it  be  where  a  passenger  is  in  the 
baggage  car  with  the  knowledge  of  the  conductor, 
and  is  there  injured?"  asked  one. 

"  It  was  decided  in  Canada,  in  such  a  case,  that 
the  traveller  could  recover  damages.  There  a 
man  went  into  the  express  company's  compart 
ment  (which  was  not  intended  for  passengers,  but 
whither  they  oft  times  resorted  to  smoke  the  pipe 
of  peace)  :  a  notice  was  usually  put  upon  the  in 
side  of  the  doors  of  the  passenger  cars  and  on  the 
outside  of  the  door  of  the  baggage  car,  forbidding 
travellers  to  ride  in  the  latter,  but  it  was  not 
shown  that  it  was  there  on  that  particular  day  ; 

i  Willis  v.  Long  Island  Rw.,  34  N.  Y.,  670. 

a  Jaeksor  •:.  Metropolitan  R\v.,  L.  R.,  10  C.  P.  49. 


ACCIDENTS    TO    TRAVELLERS.  11)3 

the  conductor  passed  through  the  car  twice  while 
the  man  was  in  there  and  made  no  objection.  By 
a  collision,  this  Watson  had  an  arm  broken,  while 
none  of  those  in  the  passenger  car  were  much  hurt, 
and  the  court  held  that  even  if  W.  was  aware  of 
the  notices,  yet  the  company  were  not  thereby 
excused,  under  the  circumstances.1  But  where  a 
man  rode  free  of  charge  on  an  engine,  after  the 
engineer  had  told  him  that  it  was  against  the  rules 
for  him  to  do  so,  it  was  held  that  he  was  a  wrong 
doer,  and  could  not  recover  for  injuries  sustained 
while  lie  bestrode  the  iron  horse,  as  the  consent  of 
the  engineer  conferred  no  legal  right.2  If,  how 
ever,  passengers  are  carried,  and  charged  fare,  in 
the  caboose  car  (whatever  that  may  be)  of  freight 
trains,  they  have  the  same  right  to  be  conveyed 
safely  as  if  luxuriating  in  a  gorgeous  Pullman 
palace  car,3  and  so  where  one  rides  on  a  gravel 
train.4  And  where  the  conductor,  though  against 
the  rules,  allowed  a  passenger  to  travel  in  a  freight 
car,  charging  him  a  first-class  fare,  the  company 
were  held  to  have  incurred  the  same  liability 
for  his  safety  as  if  he  had  been  in  a  regular  pas 
senger  train.5  Ditto  where  the  conductor  of  a  coal 


1  Watson  v.  Northern  Rw.  Co.,  24  U.  C.  Q.  B.  98;  sec  also,  Carroll  v.  N.  Y. 
&  N.  H.  Rw.,  1  Duer,  571,  where  a  man  took  a  seat  in  the  post  office  depart 
ment  of  baggage  car  with  the  assent  of  the  conductor. 

2  Robertson  v.  N.  Y.  &  E.  Rw.,  22  Barb  ,  91. 

3  Edgerton  v.  N.  Y.  &  II.  Rw.,  39 N.  Y.  St.  227  ;  Indianapolis,  etc.,  v.  Beaver, 
41  Ind.  497. 

4  Lawrenceburgh  &  Upper  Miss.  Rw.  v.  Montgomery,  7  Ind.  474. 

5  Dunn  v.  G.  T.  Rw.,  10  Am.  Law  Reg.  (N.  8.),  615. 
W.  &  R.  OF  T.— 13 


194  ACCIDENTS    TO    TRAVELLERS. 

train  invited  a  man  to  take  a  ride  and  charged 
him  naught."  1 

"  That  may  be  true  enough  down  east,  but  out 
west  if  a  passenger  takes  a  freight  train  he  takes 
it  with  the  increased  risk  and  diminution  of  com 
fort  incident  thereto,  and  if  it  is  managed  with  the 
care  requisite  for  such  trains,  it  is  all  he  has  a 
right  to  expect  or  demand  ;  "  2  remarked  one  who 
hailed  from  the  city  of  Widow  O'Leary's  celebrated 
cow. 

"  By  the  way,"  said  a  gentleman,  who  had  been 
listening  attentively  to  all  the  conversation ;  "  can 
any  of  you  gentlemen,  who  seem  to  have  the  whole 
law  appertaining  to  railways  at  your  finger's  ends 
or  the  tips  of  your  tongues  (whichever  expression 
be  the  more  correct  or  implies  the  greater  knowl 
edge),  tell  me  whether  it  is  safe  for  one  to  prom 
enade  from  one  end  of  the  train  to  the  other  for 
the  sake  of  exercise  or  to  see  who  is  on  board  ? 
Down  in  New  York  State  the  jury  must  decide 
whether  it  is  right  so  to  do,  in  order  to  find  a 
seat."  3 

"  Out  west,"  said  the  Chicagoian,  "  It  has  been 
decided  that  passengers  have  no  right  to  pass  from 
car  to  car,  unless  for  some  reasonable  purpose  ; 4 
and  heaven  only  knows  what  twelve  enlightened 
men  from  the  body  of  the  country  would,  in  their 
wisdom,  deem  to  be  reasonable." 

1  Eaton  v.  Del.,  Lack.,  &  W.  Rw.,  1  Am.  Law  Record,  121;  57  N.  Y.  S82. 

2  Chicago,  B.,  &  Q.  Rw.  v.  Ilazzard,  26  111.  373. 
*  Mclntyre  v.  N.  Y.  Central  Rw.,  37  N.  Y.  287. 

<  Galena  &  Chicago  Rw.  r.  Yarwood,  15  111.  468. 


ACCIDENTS    TO    TRAVELLERS.  195 

"  Humph,  you  don't  seem  to  have  a  very  high 
opinion  of  juries,"  said  the  representative  of  that 
class,  who  had  already  joined  in  the  conversation. 

"  I  rather  think  not  ;  who  could,  when  they 
elaborate  such  queer  decisions  from  their  brains 
and  shew  such  ignorance.  I  know  one  case  where 
an  intelligent  jury  brought  in  a  verdict  of  '  guilty  ' 
against  the  plaintiff  in  a  libel  suit;  of  another, 
where,  at  the  close  of  a  lengthy  trial,  the  foreman 
coolly  asked  the  judge  to  explain  '  two  terms  of 
law,  namely  plaintiff  and  defendant.'  Many  of 
them  would  be  decidedly  improved  were  occasional 
punishment  inflicted  as  in  the  good  old  days  of 
yore,  when  sometimes  a  juryman  was  fined  and 
had  his  nose  split ;  and  the  usual  fate  of  a  dis 
agreeing  jury  was  to  be  put  into  a  cart  and  shot 
into  the  nearest  ditch." 

Our  train  had  been  released  from  bondage  and 
under  weigh  for  some  time,  and  just  at  this  junc 
ture  the  conversation  was  stopped  by  a  collision 
taking  place.  Fortunately  the  drivers  of  the  ap 
proaching  engines  had  discovered  the  danger  some 
time  previously  ;  they  were,  therefore,  enabled  by 
putting  on  the  breaks  so  to  deaden  the  speed  that 
the  trains  barely  touched  each  other  —  gently 
kissed,  as  it  were  —  and  although  some  of  the  pas 
sengers  were  jerked  forward  in  an  uncomfortable 
manner  as  if  they  had  been  suddenly  punched  in 
a  sensitive  part,  still  no  persons  were  seriously 
hurt  except  two.  One  of  these  unfortunates  was 


196  ACCIDKNTS    TO    TRAVELLERS. 

the  newsboy,  who  in  passing  from  one  car  to  an 
other  was  thrown  to  the  ground  and  had  a  leg 
badly  crushed  ;  the  other  was  a  beautiful  little 
child  of  some  three  or  four  summers  who  had 
been  playing  with  a  lady  and  was  knocked  vio 
lently  down,  and  in  falling  hit  his  head  against 
the  side  of  a  seat.  From  his  pure  white  forehead 
a  purple  stream  was  slowly  trickling,  dyeing  his 
golden  ringlets,  as  he  lay  unconscious  upon  his 
weeping  mother's  knee.  While  some  tried  to 
restore  the  child,  and  others  to  console  the  parent, 
I  took  a  business-like  view  of  the  transaction,  and 
"  with  all  the  homage  due  to  a  sex  of  which  I  am 
enthused  dreadful,"  as  Col.  Morley  of  the  Paris 
ians  would  say,  I  approached  and  said,  — 

"  Madam,  each  drop  of  that  child's  blood  is 
worth  money ;  you  may  lay  the  foundation  of  his 
future  fortune  now  in  the  days  of  his  youth  by 
recovering  damages  against  the  company  for  the 
injury  they  have  done  to  him ;  "  she  heeded  not, 
but  I  continued.  "  Why,  in  one  case  a  child  two 
years  old  was  wandering  on  a  track  and  being 
run  over  by  a  train  lost  a  leg  and  a  hand,  and  the 
jury  gave  it  fl^SOO;1  why,  that  sum  put  out  at 
compound  interest  would  —  " 

"  Oh,  you  horrid  man,"  exclaimed  the  mother, 
"  to  talk  that  way.  But  I  did  not  buy  a  ticket 
for  him,  and  I  should  have,  as  he  is  over  three 
years  old."  And  the  mother's  grief  broke  out 

i  Redfield  on  Railways,  vol.  ii.,  p.  243,  n. ;  Rauch  v.  Lloyd,  31  Penn.  St. 


ACCIDENTS    TO    TRAVELLERS.  197 

afresh,    as    she  thought  she  had  lost  this  golden 
opportunity. 

"  Don't  trouble  yourself,  madam,  that  makes 
no  difference,  the  contract  made  with  you  when 
you  bought  your  ticket  was  that  both  you  and 
your  child  should  be  carried  safely,  and  if  there 
was  any  misrepresentation  on  your  part  as  to  the 
little  sufferer's  age,  although  it  might  render  you 
liable  for  the  fare  that  should  have  been  paid,  or 
for  a  penalty,  still  it  does  not  alter  the  position  of 
the  company,  and  they  were  and  are  bound  to 
carry  you  and  the  little  dear  safely."  l 

"Ah!"  sighed  the  mother,  "if  that  nasty 
woman  had  only  held  him  up,  and  not  have  let 
him  fall,  —  perhaps  the  jury  will  say  she  ought  to 
have  done  so  ?  " 

I  was  glad  to  see  that  the  thought  of  the  almighty 
dollar  was  applying  a  golden  salve  to  the  mother's 
wounded  heart,  if  not  to  the  boy's  forehead,  for 
I  hate  tears,  crocodile  or  otherwise,  and  was  there 
fore  willing  to  enlighten  her  ladyship  as  much  as 
possible,  especially  as  I  make  it  a  constant  prac 
tice  to  give  advice  gratuitously  (when  I  think 
it  won't  be  paid  for),  and  putting  down  the  usual 
charge  for  it  to  the  account  of  my  charitable  dis 
bursements  ;  so  I  said  :  — 

"  The  misconduct  of  one  assuming  to  take 
charge  of  a  child,  but  to  whom  it  has  not  been 
entrusted,  will  not  preclude  a  recovery  on  its  part 

1  Austin  v.  Ot.  Western  Rw.,  L.  R.,  2  Q.  B.  442. 


198  ACCIDENTS    TO    TRAVELLERS. 

for  the  negligence  of  the  company.1  In  fact 
many  of  the  American  courts  hold  that  no  amount 
of  negligence  on  the  part  of  parents  and  guar 
dians  will  excuse  those  injuring  a  child;2  espe 
cially,  if  the  action  for  such  injury  is  brought 
by  the  child  and  not  by  the  parents  to  recover 
damages  for  the  death  of  their  little  one."  3 

Alas,  for  the  poor  mother's  peace  of  mind, 
there  was  a  Job's  comforter  on  board,  and  he 
opened  his  mouth,  and  although  he  did  not  bray 
as  he  should  have  done,  being  what  he  was,  he 
spake  thus :  — 

"  The  law  in  the  State  of  Massachusetts  is 
that  the  negligence  of  those  who  have  the  charge 
of  children,  or  invalids,  unable  to  take  care  of 
themselves,  will  injuriously  affect  their  right  of 
action."  4 

"  Thank  goodness  we  are  not  near  the  Hub  of 
the  universe  now,"  I  exclaimed,  sharply. 

"  And  very  much  the  same  rule  is  laid  down 
in  England,  and  in  the  States  of  Maine,  New 
York  and  Indiana.5  In  England  where  a  child 
five  years  old  was  in  the  charge  of  his  grand 
mother  and  was  injured  by  a  train  while  crossing 
the  track,  it  was  held  that  he  was  so  identified 
with  his  old  granny  that  on  account  of  her  careless- 

1  N.  Penn.  Rw  v.  Mahoney,  57  Penn.  St.  187. 
8  Wharton  on  Negligence,  §  310. 

3  N.  P.  Rw.  v.  Mahoney,  supra;  B.  &  I.  Rw.  v.  Snyder,  18  Ohio  St.  399. 
«  Holly  v.  Boston  Gas  Light  Co.,  8  Gray,  123;  Wright  v.  Maiden  &  M.  Rw., 
4  Allen,  283. 
5  Wharton  on  Negligence,  §  311 


ACCIDENTS    TO    TRAVELLERS.  199 

ness  an  action  in  his  name  could  not  be  main 
tained  against  the  company.1  And  where  a  pass 
ing  train  cut  off  the  leg  of  a  three  and  a  half 
year  old  child,  the  court  considered  that  the  com 
pany  were  not  responsible,  unless  it  was  shown 
that  he  had  strayed  upon  the  track  through  their 
negligence  or  default.2  And  in  the  United  States 
it  has  been  held  that  to  allow  an  infant,  four  years 
old,  to  wander  at  its  own  sweet  will  in  the  public 
streets,  is  such  negligence  on  the  part  of  the 
parents  as  will  prevent  the  child  recovering  for 
any  damages  sustained.3 

"  But  not  if  the  child  were  six,  and  the  street 
a  quiet  one  "  4  —  I  broke  in,  but  my  adversary 
continued  :  — 

"  Or  to  suffer  a  child  of  two  summers  to  cross 
a  street  traversed  by  a  horse-railway."  5 

"  But  a  five  year  old  may  cross  such  a  street,"6 
I  again  broke  in. 

"  Or  even  to  cross  a  street  and  go  a  few  yards 
down  to  its  house."  7  Here  he  stopped. 

"  I  have  read  somewhere  that  in  England  they 
take  more  pains  to  protect  an  oyster  than  a  child,"  8 
remarked  one  of  the  listeners. 


Waite  v.  N.  E.  Rw.,  El.  Bl.  &  El.  719. 

Singleton  v.  Eastern  C.  Rw.,  7  C.  B.  N.  S.  287. 

Mangam  v.  Brooklyn,  etc.,  Rw.,  36  Barb.  230. 

Cosgrove  r.  Ogden,  49  N.  Y.  265  ;  see  Karr  v.  Parks,  40  Cal.  188. 

Wright  v.  Maiden  &  M.  Rw.,  4  Allen,  283. 

Barksdull  v.  N.  0.  &  C.  R.,  23  La.  An.  180. 

Callahan  v.  Bean,  9  Allen,  401. 

Wharton  on  Negligence,  §  312. 


200  ACCIDENTS    TO    TRAVELLERS. 

"Never  mind  his  croaking,  madam,"  I  went 
on.  "  These  cases  he  mentions  do  not  apply  to 
you.  If  they  did  it  would  be  visiting  the  sins  of 
the  fathers  upon  the  children  to  an  extent  not 
contemplated  by  the  decalogue  (as  a  judge  once 
remarked),1  and,  besides,  on  this  side  of  the  water 
a  parent  may  suffer  a  child  four  years  old  to  cross 
a  street  by  itself  to  school ; 2  or  wander  about  a 
station,3  without  freeing  the  company  from  liabil- 
ity." 

"  Ditto  down  where  I  growed  ; "  4  interrupt- 
ingly  ejaculated  our  Connecticut  friend. 

"  Parents,"  I  added,  "  need  only  be  ordinarily 
careful  in  not  allowing  their  small  fry  to  get  into 
danger.5  But  I  must  go  and  see  the  newsboy." 

Off  I  started  instanter  — 

For  a  virtuous  action  should  never  be  delayed, 
The  impulse  comes  from  heaven,  and  he  who  strives 
A  moment  to  repress  it,  disobeys 
The  god  within  his  mind. 

I  found  the  youth  in  the  baggage  car  with  his  leg 
tightly  bandaged.  The  pallor  spread  over  his 
countenance,  the  beads  of  perspiration  on  his  brow, 
and  his  closely  pressed  lips,  told  that  his  sufferings 
were  great ;  but  with  Spartan  courage  he  re 
pressed  every  voluntary  sign  of  pain.  A  group  of 
rough,  yet  tender  men  were  gathered  round  him, 

1  Lannen  v.  Albany  Gas  Light  Co.,  46  Barb.  264. 

2  Lynch  v.  Smith,  104  Mass.  52. 

3  Stout  r.  S.  C.  &  P.  Rw.,  11  Am.  Law  Reg.  (N.  S.),  226 

4  Daley  r.  Norwich  &  W.  Rw.,  26  Conn.  591. 

»  P.  A.  &  M.  Rw.  v.  Pearson,  72  Penn.  St.  169 


ACCIDENTS    TO    TRAVELLERS.  201 

and  they  told  me  that  it  was  feared  he  would  have 
to  lose  his  leg ;  that  he  was  the  only  son  of  his 
mother,  and  she  was  a  widow  with  no  stay  nor 
support  save  the  earnings  of  her  boy. 

"  I  say,  mister,"  said  one  of  the  party  to  me, 
"  I  kind  of  calculate  you  are  a  lawyer  from  what 
I  heard  you  say  before  we  left  the  station,  and  I 
want  to  know  whether  a  man  who  has  not  got  a 
a  ticket  can  sue  the  railway  for  damages." 

I  replied,  "  Every  person  is  a  passenger  and  en 
titled  to  be  carried  safely  (so  far  as  due  care  will 
provide  for  his  safety),  who  is  lawfully  on  the 
train  ; l  and  the  onus  is  on  the  company  to  prove 
affirmatively  that  he  is  a  trespasser.2  Any  one 
permitted  to  ride  in  a  train  as  a  passenger  is  en 
titled  to  demand  and  expect  the  same  immunity 
from  peril  whether  he  pay  for  his  seat  or  no  ;  the 
confidence  induced  is  a  sufficient  legal  considera 
tion  to  create  a  duty  in  the  performance  of  the 
service  undertaken  ;3  so,  if  one  is  injured  by  the 
culpable  negligence  or  want  of  skill  of  the  com 
pany's  servants  he  is  entitled  to  recover  although 
he  is  a  dead-head.4  Thus,  a  newspaper  reporter 
travelling  on  a  free  ticket — even  if  granted  to 
another  brother  of  the  press  ; 5  the  president  of 
of  one  company  riding  by  request  of  the  president 

Gt.  Western  of  Canada  v.  Braid,  1  Moore  P.  C.  (N.  S.),  101. 
Penn.  Rw.  Co.  v.  Books,  7  Am.  Law  Keg.  (N.  S.),  524. 
Coggs  v.  Bernard,  Holt,  13. 
Ohio  &  Miss.  Rw.  v.  Muhling,  30  111.  9. 

Gt.  Northern  Rw.  v.  Harrison,  12  C.  B.  576;  Gillenwater  v.  Madison  & 
Indian  Rw.,  5  Ind.  340. 


202  ACCIDENTS    TO    TRAVELLERS. 

of  another;1  a  mail-clerk  travelling  in  charge  of 
the  mail  bags,2  and  a  child  for  whom  no  fare  has 
been  paid;3  were  all  held  entitled  to  damages 
when  injured.  Nor  —  though  this  is  rather  be 
side  the  matter — does  the  fact  that  the  train  has 
been  hired  for  an  excursion  excuse  the  negligence, 
or  remove  the  liability  of  the  company."  4 

"  All  right,"  said  the  man  to  the  boy;  "  cheer 
up,  sonny  ;  you  will  get  a  pot  of  money  for  this 
that  will  keep  you  like  a  fighting-cock  till  you  get 
round  again." 

"I  did  not  say  that,"  I  remarked,  gloomily 
shaking  my  head. 

"  Why,  what  do  you  mean  ?  "  was  anxiously 
queried  by  several. 

"  Railway  companies  may  stipulate  for  exemp 
tion  from  all  responsibility  for  losses  accruing  to 
passengers  from  the  negligence  of  their  servants, 
unless,  indeed,  it  arise  from  their  fraudulent,  reck 
less  or  wilful  misconduct ;  5  and  where  it  has  been 
agreed  that,  in  consideration  of  a  free  pass,  the 
passenger  should  travel  at  his  own  risk,  or  where 
he  takes  a  free  ticket  having  an  express  condition 
printed  thereon  c  whereby  the  holder  assumes  all 

1  Phil   &  Read.  Rw.  r.  Derby,  14  How.  (U.  S.),  483. 

2  Collett  v.  London  &  N.  W.  R.,  16  Ad.  &  El.  (N.  S.)  984;  Nolton  v.  West 
ern  R.,  10  How.  Pr.  R.  97. 

s  Austin  r.  Gt.  Western  Rw.,  L.  R.,  2  Q.  B.  442. 

*  Skinner  v.  London,  B.,  &  S.  C.  Rw.,  5  Ex.  787  ;  Cleveland,  C.  &  C.  Rw. 
v.  Terry,  8  Ohio  (N.  S.),  570  ;  but  see  Peoria  Br.  Ass.  «.  Loomis,  20  111.  235. 

B  Welles  v.  N.  Y.  C  ,  26  Barb.  641  ;  Indiana  Central  Rw.  v.  Mundy,  21  Ind. 
48. 


ACCIDENTS    TO    TRAVELLERS.  203 

risk  of  accidents  and  expressly  agrees  that  the 
company  shall  not  be  liable  under  any  circum 
stances,  whether  of  negligence  by  their  agents  or 
otherwise,  for  an  injury  to  the  person,  or  for  any 
loss  of  or  injury  to  the  property,'  such  agreement 
or  condition  is  good,  and  will  exclude  all  liability 
on  the  part  of  the  company  for  any  negligence  (save 
gross  or  wilful)1  for  which  they  would  otherwise 
have  been  liable.  That  has  been  held  in  Canada  ; 2 
in  New  York  State,3  in  other  States,  and  in  Eng 
land  the  company  is  not  even  liable  for  wilful  or 
gross  negligence.4  The  words  "  travel  at  his  own 
risk  "  include  all  the  incidents  connected  with  the 
journey;  all  those  risks  which  arise  during  the 
transit  and  until  the  transit  is  actually  at  an  end, 
are  guarded  by  these  words.  So  if  a  man,  whose 
ticket  is  thus  marked  after  leaving  the  train  and 
while  going  off  the  company's  premises  fall  over 
a  parapet  and  is  injured,  he  will  not  be  able  to 
recover ; 5  I  mean  to  recover  damages.  But  of 
course  such  an  agreement  does  not  extend  to  an 
independent  wrong,  as  an  assault  or  false  impris 
onment,  or  any  rights  as  to  criminal  proceedings,6 

1  Ind.  Cent.  Rw.  v.  Mundy,  21  Ind.  48;  Welles  v.  N.  Y.  C.  Rw.,  26  Barb. 
641 ;  Bissell  v.  N.  Y.  C.,  29  Barb.  602 ;  111.  C.  R.  v.  Read,  37  111.  484. 

2  Sutherland  «.  Gt.  W.  Rw.,  7  U.  C.  C.  P.  409  ;  Woodruff  v.  Q.  W.  R.,  18 
U.  C.  Q.  B.420. 

s  Welles  v.  N.  Y.  C.,  26  Barb.  641. 

4  McCawley  v.  Furness  Rw.,  L.  R.,  8  Q.  B.  57. 

5  Gallin  v.  L.  &  N.  W.  Rw.,  L.  R.,  10  Q.  B.  212;  Hall  v.  N.  E.  Rw.,  L.  R. 
10  Q.  B.  437. 

o  Ibid. 


204  ACCIDENTS    TO    TRAVELLERS. 

nor  where  tlie  traveller  is  carried  under  an  agree 
ment  between  the  company  and  some  third  party 
which  says  nothing  about  the  traveller  taking  the 
risk  himself."1 

"  What 's  the  use  in  such  a  long  palaver,"  rudely 
interrupted  my  questioner,  "  the  boy  had  no  ticket 
at  all." 

"  Well,  where  a  newsboy  of  the  name  of  Billy 
Alexander,  while  on  the  platform  of  a  station, 
was  struck  by  a  piece  of  wood  projecting  from  a 
passing  car  and  so  hurt  that  he  died,  it  was  held 
to  be  a  good  defence  that  he  was  a  newsboy  in 
the  employ  of  Chisholm,  selling  papers  on  the 
company's  trains  under  an  agreement  between 
Chisholm  and  the  company,  that  the  latter  should 
not  be  liable  for  any  injury  to  the  newsboys  or 
their  goods,  whether  occasioned  by  the  company's 
negligence  or  otherwise."  2 

"  Do  you  mean  to  tell  me,"  cried  a  listener,  in 
dignantly,  "  that  in  this  free  land  of  ours  the  life 
of  a  child  can  thus  be  sold  by  his  employer  ?  " 

"  Ah,"  I  returned,  "  that  is  a  question  which 
Richards,  C.  J-,  did  not  decide.  But  if  you  want 
to  know  anything  more  on  the  subject  call  on  me 
at  my  office,  and  I  shall  be  most  happy  to  attend 
to  you,"  I  added,  as  I  left  the  car. 

I  now  retired  to  my  berth  in  the  Pullman, 
where  the  company  was  bound  to  keep  both  my- 

1  Woodruff  v.  G.  W.  B.,  18  U.  C.  Q.  B.  420. 

2  Alexander  r.  Toronto  &  N.  Rw.,  83  U.  C.  Q.  B.  474;   S.  C.,  on  appeal,  35 
U.  C.  Q.  B.  453. 


ACCIDENTS    TO    TRAVELLERS.  205 

self  and  my  goods  in  safety  while  I  slept.1  I  was 
scarcely  settled  there  ere  I  heard  loud  and  angry 
voices  proceeding  from  the  front  end  of  the  car, 
and  recognized  our  Hamitic  conductor's  tones  in 
the  words  — 

44 1  tell  you,  sah,  this  is  a  sleeping  car,  and  you 
can't  come  in  without  a  ticket." 

"  Slmre  and  I  had  a  ticket,  and  its  after  slap- 
ing  I  want  to  be  ;  "  was  the  response  in  Milesian 
accents,  broad  and  sweet. 
"  Whar  is  it  ?  " 

"  Shure  and  I  have  lost  the  plaguy  thing." 
"If  you   have    lost  your   ticket,   sah,  can  you 
remember  your  berth  ?  "  asked  the  African. 

A  solemn  pause,  during  which  Paddy  ruminated 
deeply,  then  he  exclaimed, 

44  Och,  by  jabers,  it  is  a  hard  thing  to  remem 
ber  that,  though  I  know  I  was  there  at  the  time ; 
and  my  ould  mother,  rest  her  bones,  tould  me  that 
I  was  born  on  Patrick's  day  in  the  morning,  the 
year  afore  the  famine,  and  more  by  token  our  old 
sow  had  a  fine  litter  of  pigs  that  selfsame  day." 

When  the  burst  of  laughter  that  greeted  this 
reply  had  died  away,  I  quickly  subsided  into  the 
44  arms  of  Murphy,"  and  knew  nothing  more  of 
railroads,  railroad-law,  or  railroad  travelling,  until 
I  was  called  by  the  descendant  of  Noah's  naughty 
son,  and  informed  that  we  were  just  at  the  station 
which  I  had  left  some  days  previously,  and  where 

i  Palmater  v.  Wagner,  Marine  Ct.  N.  Y.  1875. 


206  ACCIDENTS    TO    TRAVELLERS. 

my  journeyings  were  for  a  time  to  end,  and  from 
which  in  a  few  minutes  I  would  be  transported  to 
the  bosom  of  my  beloved  spouse.  Right  glad  was 
I  when  once  again  I  stood  —  mens  sana  in  corpore 
sano  —  on  the  platform  of  the  depot  of  my  native 
city,  and  saw  the  cabby  coming  from  the  baggage 
car  with  my  traps  on  his  brawny  shoulder.  I  will 
draw  the  veil  of  modesty  over  the  reception  that 
awaited  me  at  home,  and  where  I  soon  showed 
myself  to  be  "a  forked  straddling  animal  with 
bandy  legs,"  as  Dean  Swift  puts  it ;  or  as  Sir 
John  Falstaff,  Knight,  would  say,  "  for  all  the 
world  like  a  forked  radish  with  a  head  fantasti 
cally  carved  upon  it  with  a  knife." 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 


207 


CHAPTER  XIV. 

INJURIES   TO  PASSENGERS  AND  EMPLOYEES. 

An  Inefficient  Line.  -Passengers  hurt.  —  Employees  killed.  -  Lord 
Campbell's  Act.  —  Compensation  for  Death.  — Solatium  for  Feel 
ings  Wounded.  —  Scotch  Law.  —  American  Law.  —  Hen-pecked 
Husband's  Will.  —  The  Rule  in  Massachusetts.  —  In  Pennsyl 
vania.  —  In  Maryland.  —  In  Canada.  -  Hard  to  decide.  —  An 
nuity  Tables.  —  Bad  or  Diseased.  —  Insured.  —  Children  Injured. 

—  Parents  Compensated.  —Amounts  obtained.  —  A Leg  at  $24,700. 

—  For  what  compensated.  —  Chances  of   Matrimony.  —  Servants 
injured.  _  Fellow  Servants.  —  Different  Companies.  —  Which  One 
to  sue.  —  Strangers'  Act.  —  Greedy  Ruminant. 

I  HAD  fondly  hoped  that  no  new  points,  quirks, 
or  quiddities  on  railway  law  would  arise  in  the 
course  of  my  not  very  extensive  practise  for  some 
time  to  come,  so  that  I  might  have  leisure  to  pad 
dle  my  own  little  canoes,  and  issue  little  billets- 
doux  in  the  Queen's  name  to  the  company  on  my 
own  account.  But  alas  !  I  had  scarcely  settled 
down  in  my  office  on  the  day  of  my  arrival  at 
home  when  my  young  friend,  Tom  Jones  (to  whom 
I  referred  in  the  early  pages  of  this  interesting 
and  instructive  diary  of  mine),  came  rushing  in. 

After  a  considerable  amount  of  small  talk,  chit 
chat  and  mutual  inquiries  after  mutual  friends 
and  affairs,  and  things  mutually  interesting,  Tom 
exclaimed,  "  I  say,  old  fellow,  I  have  a  couple  of 


208     INJURIES    TO    PASSENGERS    AND    1-::,IPLOYEE9. 

matters  that  are  bothering  me,  and  I  want  your 
advice  thereon." 

By  the  way,  nearly  all  Tom  Jones'  matters 
bothered  him,  and  when  they  bothered  him  he 
bothered  me,  for  he  was  not  one  of  those  who 

Make  law  their  study  and  delight, 
Read  it  by  day  and  meditate  by  night. 

"All  right,"  I  said,  extending  my  left  digits 
towards  him  for  an  honorarium. 

"  Oh,  I  am  not  going  to  pay  you,"  he  remarked 
coolly,  "  so  you  need  not  expect  it." 

"  Ah,  well,"  I  returned,  quietly  and  with  the 
air  of  an  ill-used  man,  "  I  shall  do  like  old  Thur- 
low  did,  he  could  never  come  to  a  decision  without 
a  fee,  and  so  when  he  had  to  decide  upon  some 
matter  for  himself  he  would  take  a  guinea  out  of 
one  pocket  and  put  it  into  another.  Now  what 
are  your  questions  ?  "  I  always  preferred  answer 
ing  his  queries  to  lending  him  books,  for  although 
he  was  a  miserable  hand  at  accounts  he  was  a 
most  excellent  book-keeper. 

"  I  suppose  you  know,"  began  T.  J.,  "  that  a 
short  time  ago,  owing  to  a  heavy  storm,  part  of  the 
line  of  the  Blank  Railway  gave  way  " 

"  That  is  primd  facie  evidence  of  the  insuffi 
ciency  of  its  construction  ;  and  a  company  is  bound 
to  build  its  works  in  such  a  manner  as  that  they 
will  be  capable  of  resisting  all  extremes  of  weather, 
which  in  the  climate  through  which  the  line  runs 
might  be  expected,  though  rarely,  to  occur.  So 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.     209 

say  that  august  assembly,  the  Judicial  Committee 
of  the  Privy  Council."1 

"  Can't  you  wait  a  bit  —  that's  not  the  point  at 
all ;  "  said  Jones. 

"  Go  on  then." 

"  Several  men  were  killed,  and,  as  is  usual,  they 
all  had  large  families  of  small  children.  Three  of 
the  wives  have  come  to  me  to  see  if  I  can  get 
damages  against  the  company  for  them." 

"  Were  they  passengers  or  employees,  for  that 
makes  a  great  difference,"  I  said. 

"  One  was  employed  on  the  line,  the  others 
were  not,"  replied  Tom. 

"  Well,  let  us  settle  about  the  others  first." 

"  Well,  what  do  you  do  first  to  get  your  dam 
ages?  I  mean  under  what  Act  do  you  proceed  ?  " 

"  Under  what  in  England  is  called  Lord  Camp 
bell's  Act  (9  &  10  Vic.  ch.  93),  the  Canadian 
Act2  is  a  transcript  of  that ;  and  a  similar  statute 
has  been  introduced  into  most  of  the  States  of  the 
Union,  to  obviate  that  most  heathenish  of  maxims 
actio  personalis  moritur  cum  personam.  Our  Act 
provides  that  when  death  shall  be  caused  by  the 
wrongful  act,  neglect  or  default,  of  any  person, 
such  as  would  (if  death  had  not  ensued)  have  en 
titled  the  party  to  an  action,  in  every  such  case 
an  action  may  be  maintained  by  the  executor  or 

1  Gt.  Western  Rw.  v.  Fawcett;  Same  v.  Braid,  1  Moore,  P.  C.  C.  (N.  S.), 
101;  9,Tur.  (N.  S.),  339. 

2  Con.  Stat.  Can.  ch.  78. 
W.  &  R.  OF  T.— 14 


210     INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

administrator  of  the  party  injured,  and  the  jury 
may  give  such  damages  as  shall  be  proportioned 
to  the  injury  resulting  from  the  death  of  such 
party,  to  be  divided  among  the  members  of  his 
family  as  the  jury  shall  direct.  But,  of  course,  if 
any  negligence  of  tlie  party  himself,  or  those  in 
charge  of  him,  contribute  directly  to  the  injury, 
there  can  be  no  remedy.1  Have  twelve  months 
elapsed  since  the  death  ?  " 

u  No,"  was  the  response. 

"  All  right." 

"  What  damages  shall  I  claim  ?  " 

u  Only  such  as  will  compensate  for  the  pecuniary 
loss  sustained,"  2  I  returned. 

"But  one  of  my  wives — the  richest  one,  too, 
—  went  into  most  awful  fits  over  the  death  of  her 
husband,  and  has  not  been  quite  compos  mentis 
since  ;  and  I  want  something  to  solace  her  for  her 
mental  sufferings." 

"  You  cannot  get  it  in  this  country,  nor  could 
you  in  England  either.  If  the  jury  were  to  in 
quire  into  the  degree  of  mental  anguish  which 
each  member  of  a  family  suffers  from  a  bereave 
ment,  then  not  only  the  child  without  filial  piety, 
but  a  lunatic  child  and  one  of  very  tender  years, 
and  a  posthumous  child,  on  the  death  of  the 
father,  although  getting  something  for  pecuniary 
loss,  would  not  come  in  pari  passu  with  other 

1  Willets  r.  Buffalo  &  Rochester  Rw.,  14  Barb.  385,  where  a  lunatic  was 
loft  by  himself  and  in  consequence  was  killed. 

2  Blake  v.  Midland  Rw.,  18  Q.  B.  93  ;  Bradburn  v.  Q.  W.  R-,  L.R.,  10  Ex.  3. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.     211 

children,  and  would  be  cut  off  from  the  solatium. 
If  a  jury  were  to  proceed  to  estimate  the  respec 
tive  degrees  of  mental  anguish  of  a  widow  and 
twelve  children  from  the  death  of  the  pater-f ami- 
lias,  a  serious  danger  might  arise  of  damages  be 
ing  given  to  the  ruin  of  the  defendants  :  especially 
would  the  damages  be  disastrous  if  all  the  rela 
tives  mentioned  in  the  fifth  section  of  the  Imperial 
Act  (the  sixth  of  the  Canadian),  the  father  and 
the  mother,  grandfather  and  grandmother,  step 
father  and  stepmother,  grandson  and  grand 
daughter,  stepson  and  stepdaughter,  not  only  got 
compensation  for  their  pecuniary  losses,  but  sola 
tium  s  for  their  shattered  affections,  blighted  ex 
pectations  and  broken  hearts."  1 

"  That  is  too  bad,"  said  Jones,  "  for  I  am  sure 
the  Scotch  law  gives  a  solatium  for  wounded  feel 
ings,  even  where  the  death  of  the  man,  instead  of 
being  a  loss,  is  a  gain  to  the  family,  owing  to  his 
bankruptcy  or  dissipated  habits."  2 

"  Yes,"  I  replied,  "  but  the  Scotch  are  always 
more  liberal  than  other  people  ;  they  grant  a  sola 
tium  to  a  man  injured  in  his  happiness  and  cir 
cumstances  by  the  death  of  his  wife  and  child, 
whereas  in  England  a  widower  will  not  get  any 
thing  unless  the  death  of  his  spouse  causes  him 
some  pecuniary  loss  ; 3  it  being  a  pure  question  of 

1  Blake  v.  Midland  R\v.,  18  Ad.  &  Ell.  (N.  S.),  93 ;  Pym  v.  Great  Northern 
Rw.,  4  B.  &  S.  (Ex.  Ch.),  396. 

2  Ersk.  Inst.  592,  note  13. 

8  In  argument  Gillard  v.  Lancaster  &  Yorkshire  Rw.  Co.,  12  L.  T.  356. 


212     INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

pecuniary  compensation,  and  nothing  more,  which 
is  contemplated  by  the  Act.1  Nor,  I  believe,  can 
a  husband  recover  in  New  York  State  for  the 
death  of  his  wife.2  But  where  the  damages  are 
for  the  next  of  kin,  the  services  of  the  deceased 
mother  in  the  nurture  and  instruction  of  her  chil 
dren,  had  she  survived,  may  be  properly  consid 
ered.3  I  wonder  what  is  the  rule  as  to  the  solatium 
in  the  Republic  — let  us  see." 

So  saying,  I  reached  down  a  most  useful  book 
on  Railways,  by  Chief  Justice  Redfield,  of  Ver 
mont,  and  concerning  "  the  great  learning,  re 
search,  and  power  of  reasoning  displayed "  in 
which,  Lord  Chief  Justice  Cockburn  speaks  with 
expressions  of  admiration. 

"  Here  it  is :  '  There  seems  no  doubt,  according 
to  the  best  considered  cases  in  this  country,  that 
the  mental  anguish  which  is  the  natural  result  of 
the  injury,  may  be  taken  into  account,  in  estimat 
ing  damages  to  the  party  injured  in  such  cases, 
although  not  of  itself  the  foundation  of  an  ac 
tion.'  "  4 

"  It  seems,"  remarked  my  friend,  "  somewhat 
strange  that  in  Canada  a  person's  feelings  should 
make  no  difference ;  for  one  of  my  widows  feels  her 

1  Armsworth  v.  Southeastern  Rw.  Co.,  11  Jurist,  758. 

2  Lucas  v.  N.  Y.  C.,  '21  Barb.  245;  Worley  v.  Cincinnati,  II.,  &  D.  Rw., 
1  Handy,  481. 

3  Tilley  v.  Hudson  River  Rw.,  29  N.  Y.  252. 

4  Canning  v.  Williamstown ,  1  Gush.  451;  Morse  v.  Auburn  &  Syracuse 
Rw.,  10  Barb.  623  ;  so  in  California,  Fairchild  v.  California  Stage  Co.,  13  Cal. 
599. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.     213 

loss  deeply,  whereas  the  other  is  evidently  one  of 
those  'viders'  against  whom  Samivel  Veller, 
Senior,  would  have  warned  his  hopeful  boy." 

"  Both  are  entitled  to  the  same  compensation, 
although  one  was  as  closely  joined  in  sympathy 
and  spirit  to  her  lost  spouse  as  was  Chang  to  Eng, 
in  the  flesh  ;  and  the  other  was  the  Elizabeth  re 
ferred  to  in  the  will  of  that  unfortunate  wretch 
who  died  in  London,  in  1791.  I  must  read  you 
that  will,  though  it  is  rather  beside  the  subject, 
for  it  is  a  perfect  model  for  hen-pecked  husbands 
to  follow ;  here  it  is.  fc  Seeing  that  I  have  had  the 
misfortune  to  be  married  to  the  aforesaid  Eliza 
beth,  who  ever  since  our  union,  has  tormented  me 
in  every  possible  way ;  that  heaven  seems  to  have 
sent  her  into  the  world  solely  to  drive  me  out  of 
it ;  that  the  strength  of  Samson,  the  genius  of 
Homer,  the  prudence  of  Augustus,  the  skill  of 
Pyrrhus,  the  patience  of  Job,  the  philosophy  of 
Socrates,  the  vigilance  of  Hermogenes,  would  not 
suffice  to  subdue  the  perversity  of  her  character  ; 
that  no  power  on  earth  can  change  her;  seeing 
we  have  lived  apart  during  the  last  eight  years, 
and  that  the  only  result  has  been  the  ruin  of  my 
son,  whom  she  has  corrupted  and  estranged  from 
me:  weighing,  maturely  and  seriously,  all  these 
considerations,  I  have  bequeathed  and  I  do  be 
queath,  to  my  said  wife  Elizabeth,  the  sum  of  one 
shilling,  to  be  paid  to  her  within  six  months  of  my 


214    INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

death.'  But  to  return  ;  as  to  damages,  I  see  that 
in  Massachusetts  by  statute l  the  passenger  carrier 
is  subject  to  a  fine,  not  exceeding  $5,000,  to  be  re 
covered  by  indictment,  to  the  use  of  the  executor 
or  administrator  of  the  deceased  for  the  benefit  of 
his  widow  and  heirs.  Under  this  Act,  if  the  death 
is  instantaneous  and  simultaneous  with  the  injury, 
as  no  right  of  action  accrues  to  the  person  injured, 
there  is  none  to  which  the  Act  can  apply ; 2  but  it 
is  sufficient  if  one  does  not  die  for  fifteen  minutes, 
although  insensible  from  the  first.3  In  Pennsyl 
vania,  the  jury  were  told  to  estimate  damages  4  by 
the  probable  accumulations  of  a  man  of  such  age, 
habits,  health,  and  pursuits  as  the  deceased,  during 
what  would  probably  have  been  his  lifetime.'  4  In 
Maryland  the  jury  was  directed  to  give  such  dam 
ages  as  would  yield  the  family  of  the  deceased  the 
same  support  as  they  would  have  obtained  from 
the  labor  of  the  father  during  the  time  lie  would 
probably  have  lived  and  worked,  and  that  they 
might  consider  the  age,  health,  and  occupation  of 
the  man  killed,  and  the  comfort  and  support  he 
was  to  his  family  at  the  time  of  his  death."  5 

"  I  see,"  said  Tom,  who  seemed  unwilling  that 
I  should  do  all  the  talking,  "  that  our  own  Chief 
Justice  Robinson,  on  one  occasion,  confessed  him- 


1842,  c.  89. 

Ilollenbeck  v.  Berkshire  Rw.,  9  Gush.  481. 
Bancroft  v.  Boston  &  Worcester  Rw.,  11  Allen,  84. 
Penn.  Rw.  Co.  v.  McCloskey,  23  Penn.  St.  526,  528. 
Baltimore  &  Ohio  Rw.  v.  State,  24  Md.  271. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.      215 

self  utterly  at  a  loss  to  make  a  satisfactory  compu 
tation  of  the  amount  of  damages  to  be  awarded,  or 
of  the  pecuniary  loss  sustained  by  a  widow  and 
her  children  through  the  death  of  the  head  of  the 
house :  he  said  he  had  no  means  of  determining 
whether  they  would  have  been  better  off  if  the 
father's  life  had  run  its  natural  course,  or  not ;  it 
was  mere  conjecture.  The  father  might  have  be 
come  extravagant  or  intemperate,  and  squandered 
his  property  ;  or  from  too  great  eagerness  to  grow 
rich,  might  have  lost  it  by  grasping  at  too  much, 
or  might  have  died  from  natural  causes  within  a 
year  or  a  month,  leaving  his  family  no  better  off 
than  he  did  leave  them  when  carried  away  by  the 
sad  accident.1  And  I  think  that  I  would  be 
equally  puzzled  were  I  on  a  jury  ;  I  don't  see 
how  in  the  world  a  jury,  except  by  drawing  lots, 
can  calculate  the  damages  arising  from  the  loss  of 
the  income,  and  of  the  care,  protection,  and  assist 
ance  of  the  father." 

"  Yes,  it  must  be  rather  a  nice  calculation." 
"  Suppose,"  continued  Jones,  "  there  was  an  ac 
cident  to  a  train  containing  an  archbishop,  a  lord 
chancellor,  a  bank  director,  a  lunatic,  a  wealthy 
but  immoral  man,  and  one  virtuous  but  bankrupt, 
and  all  these  respectable  persons  came  to  final 
grief  :  how  could  any  ordinary  jury  estimate  the 
pecuniary  value  of  the  conjugal  and  paternal  care, 
protection,  and  assistance  of  each  of  these." 

1  Secord  v.  Great  Western  Bw.,  15  U.  C.  Q.  B.  631. 


216     INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

"  You  need  not  put  such  an  unlikely  case,"  I 
said,  "  merely  suppose  that  there  were  together 
one  who  — 

'  scorned  life's  mathematics, 
Could  not  reckon  up  a  score, 

Pay  his  debts,  or  be  persuaded 
Two  and  two  are  always  four. 

That  another  was  exact  as  Euclid, 
Prompt  and  punctual,  no  one  more.' 

"Still,"  I  added,  "these  difficult  calculations 
have  to  be  made." 

"'  But  how  ?  " 

"  In  England,  it  has  been  decided  that  the  dam 
ages  are  not  to  be  estimated  according  to  the  life 
of  the  man,  calculated  by  annuity  tables,  but  the 
jury  should  give  what  they  consider  a  reasonable 
compensation  ; l  although,  in  the  United  States,  it 
was  thought  proper  for  the  judge  in  charging  the 
jury  to  allude  to  the  expectation  of  life  according 
to  the  tables  deduced  from  the  bills  of  mortality:2 
and  even  in  England,  in  such  cases,  the  average 
and  probable  duration  of  the  life  is  a  material 
point,  which  cannot  be  better  shown  than  by  the 
tables  of  insurance  companies,  who  learn  it  by  ex 
perience.3  And  the  probable  benefits  of  the  con 
tinuance  of  the  life  of  the  father,  as  to  the  chil 
dren,  is  to  be  estimated  with  reference  to  their 
majority,  and  as  to  the  widow,  with  reference  to 

1  Armsworth  v.  Southeastern  Rw.,  11  Jur.  759. 

2  Smith  v.  N.  Y.  &  Ilarlem  Rw.,  6  Duer,  225  ;  City  of  Chicago  t».  Major,  18 
111.  349. 

s  Rowley  v.  London  &  N.  W.  Rw.,  29  Law  Times  Rep.  (N.  S.),  180. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.     217 

the  expectation  of  life  as  determined  by  the 
tables.1  Of  course,  the  jury  are  not  to  attempt  to 
give  damages  -to  the  full  amount  of  a  perfect  com 
pensation  for  the  pecuniary  injury,  but  must  take 
a  reasonable  view  of  the  case,  and  give  what  they 
consider,  under  all  the  circumstances,  a  fair  com 
pensation."  2 

"  Would  it  make  any  difference  were  the  man 
of  a  bad  character  or  diseased  ?  " 

"  If  the  man  had  a  fatal  disease  which  would 
be  sure  to  kill  him  in  a  short  time,  the  amount  of 
damages  given  should  be  less.3  And  as  to  char 
acter,  the  loss  is  supposed  to  be  of  a  man  as  he 
ought  to  be.  It  has  been  held  not  to  be  necessary 
that  the  widow,  or  next  of  kin,  should  have  any 
legal  claim  upon  the  deceased  for  support."  4 

"  How  would  it  be  if  he  was  insured,  and  by  his 
death  the  family  rather  made  than  lost?  " 

"  Well,  I  presume  that  if  the  insurance  goes  to 
a  man's  family,  it  would  be  a  good  reason  for  re 
ducing  the  amount  of  damages.  There  appears  to 
be  only  one  English  case  on  this  point,  and  that 
was  at  Nisi  Prius  and  is  not  reported  at  length  ; 
in  it  Lord  Campbell  told  the  jury  to  deduct  from 
the  amount  of  damages  the  amount  of  an  insur 
ance  against  accidents,  and  any  reasonable  sum 

1  Bait.  &  Ohio  Rw.  v.  State,  33  Md.  542  ;  Macon  &  Western  R\v.  v.  Johnson, 
38  Ga.  409. 

2  Rowley  v.  London  &  N.  W.  Rw.,  29  Law  Times  Rep.  (N.  S.),  180. 

3  Birkett  v.  Whitehaven  Junction  Rw.,  4  II.  &  X.  732. 
*  Railway  Co.  v.  Barren,  5  Wallace,  90. 


218     INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

they  should  think  fit  in  respect  of  life  insurance.1 
In  a  Canadian  case,  McLean,  J.,  said,  that  if  the 
interest  on  the  insurance  would  exceed  the  annual 
value  of  the  testator's  income  while  living  and 
exercising  his  ordinary  avocations,  it  would  surely 
be  competent  for  the  company  to  show  that  the 
widow  had  sustained  no  pecuniary  damages,  and 
that  only  nominal  damages  should  be  given,  if  in 
deed  any.2  But,  I  should  say  that  if  the  insurance 
went  to  some  of  the  family  only,  the  others  would 
still  have  their  right  to  substantial  damages."  3 

"  I  believe,"  continued  the  irrepressible  Jones, 
"  that  if  an  injured  man  settles  with  the  company 
for  a  sum  of  money,  that  puts  an  end  to  the  whole 
matter,  and  if  he  afterwards  shuffles  off  this  mor 
tal  coil  nothing  more  is  to  be  had." 

"  Yes ;  once  and  forever,  is  the  rule,  even  if  the 
unfortunate  makes  a  mistake  and  takes  too  little."  4 

"  Can  you  make  money  out  of  the  slaughter  of 
children  ?  " 

"  Oh,  certainly  ;  though  in  England  doubts 
have  been  suggested  as  to  whether  damages  were 
obtainable  to  compensate  for  the  loss  of  the  ser 
vices  of  a  child  so  young  as  to  be  unable  to  earn 

1  Hicks  v.  Newport  A.  &  II.  Rw.,  mentioned  in  4  B.  &  S.  403  ;  see  Bradburn 
«.  G.  W.  Rw.,  L.  R. ,  10  Ex.  3,  where  it  was  held  that  money  received  on  an 
accident  insurance  policy  could  not  be  considered  in  reduction  of  damages  for 
injuries  caused  by  negligence. 

2  Ferric  v.  Great  Western  Rw.,  15  U.  C   Q.  B.  517. 

3  Pym  v.  Great  Northern  Rw.,  4  B.  &  S.  397,  Ex.  Ch. 

4  Read  v.  Great  Eastern  Rw.,  L.  R.,  3  Q.  B.  555  ;  but  see  remark  of  Erie, 
C.  J.,  in  Pym  v.  Gt.  N.  Rw.,  4  B.  &  S.  406;   and  Coleridge,  J.,  in  Blake  v. 
Midland  Rw.,  18  Ad.  &  El.  (N.  S.),  93. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.     219 

anything  ; l  but  in  New  York  a  mother  recovered 
$1,300  for  the  death  of    a  daughter  seven  years 

old."  2 

"  That  was  a  pretty  good  figure  for  a  female 

youngster." 

"  Yes,  as  the  pecuniary  loss  is  not  supposed  to 
be  extended  beyond  the  minority  of   the  child.3 
In  England,  however,  a  father  recovered  for  the 
loss  of  a  son  twenty-seven  years  old,  but  unmar 
ried,  who  had  been  accustomed  to  make  occasional 
presents   to   his   parents.4     There    the    old    man 
rather  '  tried  to  stick  it  on  ' ;  he  had  a  swell  funeral 
and  bought  crape  for  the  family  and  wanted  the 
company  to  pay  for  them  ;  the  jury  said  '  Yea,' 
but  the  court  said  '  Nay.'     In  one  case,  however, 
a  mourning  husband   recovered    the    funeral    ex 
penses  of  his  wife.5     As  a  rule,  damages  of  a  pe 
cuniary  nature  must  be  shown  ;  so,  where  a  son 
was  in  the  habit  of  assisting  his  father  by  carrying 
round  coals  for  him,  it  was  held  that  £75  was  too 
much  to  give  the  old  man  for  compensation  for  his 
death.6     In  an  Irish  case,  where  a  boy  of  fourteen, 
earning  no  wages  and  whose  business  capabilities 
were  valued  at  six-pence  per  day,  was  killed,  it 

1  Bramhall  v.  Lees,  29  Law  Times,  111. 

2  Court  of  Appeals,  14  N.  Y.  310. 

s  State  v.  Baltimore  &  Ohio  Rw.,  24  Md.  84 ;  but  see  Penn.  Rw.  v.  Adams, 
55  Penn.  St.  499. 

*  Dalton  v.  S.  E.  Rw.  4  C.  B.  (N.  S.),  296. 

B  Redfield  on  Railways,  vol.  ii.  p.  275. 

6  Franklin  v.  S.  E.  Rw.  3  II.  &  N.  211 ;  Duckworth  v.  Johnson,  4  II.  &  N. 
653. 


220     INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

was  considered  that  the  probability  of  his  assisting 
his  mother  was  good  evidence  to  go  to  the  jury.1 

"  What  sums  have  been  given  and  allowed  by 
the  court  for  the  death  of  the  father  ?  " 

"  Well,  it  was  considered  that  $12,000  was  not 
too  much  for  the  widow  and  three  children  of  an 
industrious  well-to-do  farmer  ; 2  in  an  English 
case  XI, 000  was  given  to  the  widow,  and  £  1,500 
to  each  of  eight  young  children,  $65,000  in  all  ; 3 
then  |1,300  for"  that  baby  girl.4  But  when 
$20,000  was  given  as  damages  for  the  death  of  a 
blacksmith  —  the  inventor  of  a  patent  plough  — 
who  was  killed  at  the  celebrated  Desjardins  Canal 
accident,  a  new  trial  was  granted,  as  the  court 
thought  the  sum  enormously  excessive.5  On  the 
other  hand,  in  one  case,  twelve  miserable  jurymen, 
who  doubtless  would  have  eagerly  skinned  a  mos 
quito  for  the  sake  of  its  hide  and  tallow,  gave  XI 
to  a  poor  widow,  and  ten  shillings  each  to  her  two 
fatherless  children.6  So  you  see  the  sum  goes  by 
the  rule  of  thumb." 

"So  it  appears,"  answered  my  young  friend, 
who  sucked  in  knowledge  as  a  sponge  does  water 
—  only  to  lose  it  again.  "But  some  of  those  are 
not  bad  figures." 

"  Certainly  not ;  yet  they  are  by  no  means   as 

Condon  v.  Great  Southern  &  Western  Rw.,  16  Ir.  C.  L.  R.  415. 

Secord  v.  Great  Western  Rw.,  15  U.  C.  Q.  B.  631. 

Pym  v.  Great  Northern  Rw.,  4  B.  &  S.  397  Ex.  Ch. 

Court  of  Appeals,  14  N.  Y.  310. 

Morley  v.  Great  Western  Rw.,  16  U.  C.  Q.  B.  504. 

Springett  v.  Balls,  7  B.  &  S.  477. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.      221 

good  as  some  people  have  got  and  had  the  pleas 
ure  of  spending  themselves.  In  one  case,  a  man 
received  $6,000  for  a  broken  leg,  which  got  well 
in  about  eight  months:1  another  got  $24,700 
(Canada  money)  for  the  loss  of  his  leg." 

44  What  a  leg  that  must  have  been  —  a  match 
for  Miss  Kilmansegg's  precious  limb,  which 

'  Was  made  in  a  comely  mould, 
Of  gold,  fine  virgin  glittering  gold, 
As  solid  as  man  could  make  it  — 
Solid  in  foot,  and  calf,  and  shank, 
A  prodigious  sum  of  money  it  sank; 
In  fact,  't  was  a  branch  of  the  family  bank, 
And  no  easy  matter  to  break  it. 

All  sterling  metal,  —  not  half-and-half, 
The  goldsmith's  mark  was  stamped  on  the  calf.  — 
'Twas  pure  as  from  Mexican  barter. 

'T  was  a  splendid,  brilliant,  beautiful  leg, 

Fit  for  the  Court  of  Scander-Beg, 

That  precious  leg  of  Miss  Kilmansegg  ! '  ' 

Exclaimed  Tom  Jones  glowing  with  poetic  fire, 
his  eye  in  a  fine  frenzy  rolling  at  the  thought  of 
the  bawbees. 

44  Cease  exhibiting  your  Hood,"  I  said  severely. 
44  In  another  case  $10,000  was  obtained  for  some 
thing  or  other,  when  if  the  man  had  been  killed 
outright  his  friends  would  only  have  got  $5,000.3 
But  in  these  three  cases,  new  trials  were  granted, 
as  will  always  be  the  way  where  the  damages  are 

1  Clapp  v.  Hudson  R.  R.,  19  Barb.  461. 

2  Batchelor  v.  Buffalo  &  Brantford  Rw.,  5  U.  C.  C.  P.  127. 

3  Collins  v.  Albany  &  Sch.  Rw.,  12  Barb.  492. 


222    INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

so  excessive  as  to  strike  every  one  as  beyond  all 
measure  unreasonable  and  corrupt,  and  as  show 
ing  the  jury  to  have  been  actuated  by  passion,  cor 
ruption,  or  prejudice.1  Where,  however,  a  woman 
had  lost  one  arm  and  the  use  of  the  other,  and 
was  so  bruised,  battered,  blackened  and  injured 
that  she  was  in  constant  pain,  and  her  health  and 
memory  were  impaired,  and  in  three  successive 
trials  recovered  $10,000,  118,000,  and  $22,250 
respectively,  the  first  two  verdicts  were  set  aside, 
but  she  was  allowed  to  keep  the  third.2  And 
where  one  was  disabled  for  two  years,  $4,500  was 
held  not  exorbitant  compensation  ; 3  and  in  Con 
necticut,  11,800  to  a  two  year  old  baby  for  the 
loss  of  a  leg  and  hand  were  given  and  retained.4 
And  where  a  man  broke  his  leg  in  two  places, 
was  confined  to  his  room  for  four  or  five  months 
during  which  time  the  injured  leg  became  shorter 
than  the  other,  he  was  allowed  to  retain  $2,000 
awarded  to  him  by  the  jury,5  and  Mr.  Rock 
well,  who  had  to  keep  his  bed  six  weeks,  suffer 
ing  great  pain  the  while,  and  could  not  attend  to 
his  business  for  several  months  and  had  to  pay 
$1,500  to  the  disciples  of  Galen,  was  allowed  to 
keep  $12,000  given  him  by  twelve  jurymen.6 

i  Colcman  v.  Southwick,  9  Johns.  45  ;  Gilbert  v.  Burtenshawf,  Cowp.  230; 
Hewlett  v.  Cruchley,  5  Taunt.  277. 

Shaw  v.  Boston  &  Worcester  Rw.,  8  Gray,  45. 
Curtiss  v.  Rochester  &  S.  Rw.,  20  Barb.  282. 
Redfield  on  Railways,  vol.  ii.,  p.  243. 
Fairbanks  r.  G.  W.  R.,  35  Q.  B.  (Ont.),  523. 
Rockwell  v.  Third  Avenue  Rw.,  64  Barb.  N.  Y.  438. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.     223 

But  $5,000  for  a  damaged  hand  was  held  too 
much.1  As  these  things  rest  a  great  deal  in  the 
discretion  of  the  jury  they  must  of  necessity  be 
more  or  less  uncertain.  But  the  amount  paid  by 
railway  companies  for  compensation  for  injuries 
is  enormous  :  the  Revere  accident,  in  Massa 
chusetts,  a  few  years  ago,  cost  the  company  half 
a  million  of  dollars,  and  in  England  between 
1867  and  1871  the  various  companies  paid  out 
$10,000,000  for  this  purpose." 

"  Can  you  sue  more  than  once  ?  " 

"  No  ;  you  must  go  for  all  your  damages,  pres 
ent  and  prospective,  in  one  action."  2 

"  What  do  you  actually  get  paid  for  ?  " 

"  The  effect  of  the  accident  —  both  at  the  pres 
ent  time  and  in  the  future  —  upon  one's  health, 
use  of  limbs,  ability  to  attend  to  business  and 
pursue  the  course  of  life  that  one  otherwise  would 
have  done,  the  bodily  pain  and  suffering  en 
dured,  and  in  fact  all  injuries  that  are  the  legal, 
direct,  and  necessary  results  of  the  accident.3  If 
sufficient  time  has  not  elapsed  to  enable  the  in 
jury  to  be  properly  computed,  the  trial  should  be 
postponed.4  A  jury  may  be  properly  asked  to 
consider  the  fact  that  the  injured  one  had  a 
reasonable  prospect  of  increasing  his  income  al- 

1  Union  Pacific  Rw.  v.  Hand,  7  Kan.  380. 

2  Hodsoll  v.  Stallebras,  11  Ad.  &  El.  301 ;  Whitney  v.  Clarendon,  18  Vt.  252. 

3  Curtiss  v.  Rochester  &  S.  Rw.  20  Barb.  282  ;  Memphis,  etc.  Rw.  v.  Whit- 
field,  44  Miss.  466. 

«  Speers  v.  G.  W.  R.,  6  Pr.  Rep.  (Ont.),  173. 


224     INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

though  at  the  time  it  was  small.1  In  some  eases 
the  plaintiff  has  been  allowed  to  add  to  his 
actual  damages  of  loss  of  time,  expense  of  cure, 
pain  and  suffering,  and  prospective  disability, 
if  any  —  counsel  fees  not  recoverable  as  taxable 
costs,2  but  this  rule  is  not  now  followed.3  A 
husband  may  recover  for  the  expense  of  the  cure 
of  his  wife,  and  for  the  loss  of  her  services.4  Ex 
penses  incurred  by  sickness  of  a  wife  caused  by 
the  death  of  her  child,5  and  damages  for  prema 
ture  labor,  and  birth  of  a  still-born  child  caused 
by  collision,  are  recoverable.6  One  young  lady, 
who  was  seriously  injured  by  the  upsetting  of  a 
passenger  car,  sought  to  get  additional  damages 
•because  the  prospects  of  her  forming  a  matri 
monial  alliance  were  lessened  by  her  injuries,  but 
the  poor  thing  failed  in  her  attempt  for  lack  of 
evidence  on  the  point,  and  because  her  attorney 
had  neglected  to  insert  the  special  claim  in  the 
declaration."  7 

"  Oh  that  was  too  bad,"  said  Jones,  "  for  the 
desire  of  marriage  —  her  chances  of  which  had 
been  lessened  —  arises  naturally  from  the  princi 
ple  of  reproduction  which  stands  next  in  impor- 

'  Fair  v.  L.  &  N.  W.  Rw.,  Q.  B.  18  W.  11.  66. 

2  Barnard  v.  Poor,  21  Pick.  381 ;  Sandback  v.  Thomas,  1  Stark.  306. 
s  Grace  v.  Morgan,  2  Bing.  (N.  C.),  534  ;  Jenkins  v.  Biddulph,  4  Bing.  160. 
*  Hopkins  v.  Atlantic  &  St.  Lawrence  Rw.,  36  N.  II.  9  ;  Pack  v.  Mayor  of 
New  York,  3  Comst.  489  ;  Campbell  v.  G.  W.  II.,  20  U.  0.  C.  P.  345. 
s  Ford  v.  Monroe,  20  Wendell,  210. 
e  Fitzpatrick  v.  Great  Western  Rw.,  12  U.  C.  Q.  B.  645. 
7  Hanover  Rw.  v.  Coyle,  55  Penn.  396. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.      225 

tance  to  its  elder  born  correlative,  self-preserva 
tion,  and  is  equally  a  fundamental  law  of  existence: 
it  is  the  blessing  which  tempered  with  mercy  the 
justice  of  the  expulsion  from  Paradise  ;  it  was 
impressed  upon  the  human  creation  by  a  benevo 
lent  Providence,  to  multiply  the  images  of  Him 
self,  and  so  promote  His  own  glory  and  the  hap 
piness  of  his  creatures.  Not  man  alone  but  the 
whole  animal  and  vegetable  kingdoms  are  under 
an  imperious  necessity  to  obey  its  mandates. 
From  the  lord  of  the  forest  to  the  monster  of  the 
deep  ;  from  the  subtlety  of  the  serpent  to  the 
innocence  of  the  dove  ;  from  the  celastic  embrace 
of  the  mountain  Kalima  to  the  descending  fructi 
fication  of  the  lily  of  the  plain,  all  nature  bows 
submissively  to  this  primeval  law.  Even  the 
flowers  which  perfume  the  air  with  their  fragrance 
and  decorate  the  forests  and  the  fields  with  their 
hues,  are  but  curtains  to  the  nuptial  bed.  The 
principles  of  morality,  the  policy  of  nations,  the 
doctrines  of  the  common  law,  the  law  of  nature 
and  the  law  of  God,  unite  in  condemning  any  act 
which  hinders  people  entering  into  the  holy  estate 
of  wedlock."  l 

"  My  conscience,  Tom  Jones,  how  did  you  be 
come  master  of  such  mighty  and  glowing  strains 
of  high  toned  eloquence,"  I  asked,  as  I  "  astonied 
stood  and  blank." 

"  Oh,  I  have  an  action  for  breach  of  promise 

1  Per  Lewis,  J.     Commonwealth  v.  Stauffer,  10  Barr.  350. 
W  &  R.  OF  T.— 15 


226    INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

coming  on  to-morrow,  and  I  thought  I  would  see  if 
I  knew  the  peroration  of  my  address  to  the  jury." 

"  Did  you  compose  it  ?  "  I  asked. 

"  Not  quite.  Mr.  Justice  Lewis,  of  Pennsyl 
vania,  originally  uttered  the  words  in  giving  judg 
ment  in  a  will  case.  Now  then,"  said  Jones, 
after  a  pause,  "  what  about  the  employee  that  was 
killed." 

"  Ah  !  more  of  them  are  killed  every  year  than 
the  number  of  soldiers  who  died  during  the 
Ashantee  war  ;  1,000  or  1,200  appears  to  be  the 
annual "  number  in  the  old  country.  But  it  is 
clearly  settled  both  in  England  and  America,  that 
a  servant  who  is  injured  through  the  negligence  or 
misconduct  of  a  fellow  servant,  can  maintain  no 
action  against  the  master,1  if  the  latter  has  taken 
due  care  not  to  expose  him  to  unnecessary  dan 
ger,2  and  has  made  a  proper  selection  of  servants 
—  competent  and  trustworthy  —  and  has  a  suffi 
cient  number  of  them,3  and  has  himself  not  been 
guilty  of  negligence,4  and  takes  care  to  furnish 
and  maintain  suitable  and  safe  machinery  and 
structures,5  and  if  a  servant  continues  his  work 

1  Priestley  v.  Fowler,  3  M.  &  W.  1  ;  Farwell  v.  Boston  &  W.  Rw.,  4  Met.  49 ; 
Brown  v.  Maxwell,  6  Hill,  N.  Y.  592. 

2  Hutchinson  v.  York,  etc.,  Rw.,  5  Ex.  353 ;  Wiggett  v.  Fox,  11  Ex.  837 ; 
Keegan  v.  Western  Rw.,  4  Selden,  175. 

3  Tarrant  v.  Webb,  18  0.  B.  805;  Frazier  v.  Penn.  Rw.,  38  Penn.  St.  104; 
Wright  v.  New  York  Central,  28  Barb.  80 ;  Hard  v.  Vermont  &  Canada  Rw., 
32  Vt.  473. 

*  Ormond  v.  Holland,  1  El.  Bl.  &  El.  102. 

B  Bartonshill  noal  Co.  v.  Reid,  3  Macq.  II.  L.  Cas.  266  ;  Tarrant  v.  Webb,  18 
C.  B.  797  ;  Weems  v.  Mathieson,  4  Macq.  215. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.     227 

knowing  that  his  fellows  are  incompetent,  or  the 
machinery  defective,  he  is  guilty  of  contributory 
negligence."  1 

"  It  seems,"  remarked  my  friend,  "  strange  that 
if  my  coachman  runs  over  a  stranger  and  kills 
him,  I  have  to  make  reparation,  but  if  he  runs 
over  the  footman  and  disposes  finally  of  that  man 
of  buttons,  it  is  a  matter  of  no  importance.  And 
in  this  case  it  will  prove  very  hard  on  the  poor 
family." 

uAh,  well!  judges  and  juries  must  not  be 
drawn  out  of  the  path  of  duty  even  by  their  feel 
ings  for  the  widow  and  the  orphan.  The  reason 
of  the  law  is,  that  when  a  servant  engages  to 
serve  a  master  he  undertakes  to  run  all  the  ordi 
nary  risks  of  the  service,  which  includes,  of  course, 
the  negligence  of  fellow  servants  acting  in  the 
discharge  of  their  duty  towards  their  common 
master.2  If  the  rule  was  otherwise  it  might  be 
come  very  hard  on  the  master  ;  as  Lord  Abinger 
suggests,  the  footman  who  sits  behind  the  carriage 
would  have  an  action  against  his  master  if  he 
came  to  grief  through  the  negligence  of  the  coach- 
maker  or  harness  maker,  or  through  the  drunken 
ness,  neglect,  or  want  of  skill  of  the  coachee ;  in 
fact  the  poor  master  would  be  liable  to  his  servant 
for  the  negligence  of  the  chambermaid,  in  putting 
him  into  a  bed  with  damp  sheets,  whereby  he  took 

1  Holmes  v.  Clark,  6  H.  &  N.  349  ;  7  Ibid.  937. 

2  Morgan  v.  Vale  of  Neath  Rw.,  L.  R.,  1  Q.  B.  149. 


228     INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

the  rheumatism  ;  for  that  of  the  upholsterer  in 
sending  him  a  crazy  bedstead,  whereby  he  fell 
down  while  asleep  and  injured  himself;  or  for 
the  negligence  the  cook  in  not  properly  clean 
ing  the  copper  vessels  used  in  the  kitchen  ;  of  the 
butcher  in  supplying  the  family  with  meat  injuri 
ous  to  health  ;  of  the  builder  for  a  defect  in  the 
foundation  of  the  house  whereby  it  fell,  and  in 
jured  both  the  master  and  the  servants  in  its 


ruins. 


"But  what  is  a  fellow  servant  ?  " 


"  In  England  all  the  servants  of  the  same  per 
son,  or  company,  engaged  in  carrying  forward  the 
common  enterprise  —  although  in  different  de 
partments,  widely  separated  or  strictly  subordi 
nated  to  others  —  are  fellow  servants  and  are 
bound  to  run  the  hazard  of  any  negligence  or 
wrong  doing  which  may  be  committed  by  any  of 
their  number,2  and  it  makes  no  difference  that  the 
negligence  is  imputed  to  a  servant  of  superior 
authority,  whose  directions  the  other  was  bound 
to  obey.3  But  in  some  of  the  American  cases,  it 
has  been  held  that  employees,  who  are  so  far  re 
moved  from  each  other  as  that  the  one  is  bound 
to  obey  the  other,  are  not  fellow  servants  within 
the  "rule;4  other  judges,  however,  have  denied 

1  Priestley  v.  Fowler,  3  M.  &  W.  1. 

2  Tunney  v.  Midland  Rw.,  L.  R.,  1  C.  P.  291 ;  see  also,  Plant  v.  G.  T.  R..  27 
U.  C.  Q.  B.  78. 

»  Feltham  v.  England,  L.  R.,  2  Q.  B.  33. 

4  Coon  v.  Syracuse  &  Utica  Rw.,  1  Selden,  492  ;  Louisville  &  N.  Rw.  v.  Col 
lins,  5  Am.  Law  Reg.  (N.  S.),  265 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.     229 

this  qualification  ; 1  and  now  it  seems  settled  that 
it  is  sufficient  to  bring  the  case  within  the  general 
rule,  if  the  servants  are  employed  in  the  same 
general  service,2  or  under  the  same  general  con 
trol."  3 

"  All  this  may  be  very  true,  but  then  you  see, 
my  dear  Eldon,  my  man  was  killed  in  consequence 
of  the  state  of  the  track,"  said  Jones. 

"  Why  in  the  name  of  all  that  is  sacred  and 
profane  did  you  not  remind  me  of  that  before. 
In  one  case  a  company  was  held  responsible  for  an 
injury  to  one  of  its  servants  through  the  track  be 
ing  out  of  repair,4  but  in  others  it  was  considered 
that  if  the  line  was  properly  built  and  inspected 
it  was  all  that  could  be  required-.5  So  you  can 
draw  your  own  conclusions,  for  I  am  getting  tired 
of  you." 

"Well,  I'm  off,  and  am  much  obliged.  But, 
oh,  one  point  more  before  I  leave  you.  One  of 
the  men  was  coming  from  Chicago  and  had  a 
coupon  ticket  which  he  purchased  at  the  station 
there,  does  that  make  any  difference  ?  " 

"  Through  tickets  do  not  import  a  contract  with 
the  purchaser  on  the  part  of  the  company  selling 

1  Farwell  v.  Boston  &  W.  Rw.,  4  Met.  49,  60  ;  Gillshanuon  v.  Stony  Brook 
Rw.,  10  Gush.  228  ;  Chicago  &  N.  W.  Rw.  v.  Jackson,  55  111.  492. 

2  Wright  v.  N.  Y.  C.,  25  N.  Y.  562 ;  and  see  Baird  v.  Pettit,  29  Phil  Rep 
397. 

8  Abraham  v.  Reynolds,  5  II.  &  N.  142 ;  Hard  v.  Vermont  &  Canada  Rw 
32  Vt.  475. 

*  Snow  v.  Housatonic  Rw.,  8  Allen,  441. 

8  Faulkner  v.  Erie  Rw.,  49  Barb.  324;  Warner  v.  Same,  8  Am.  Law  Reg 
(N.  S.),  209. 


230     INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

to  carry  him  beyond  the  limits  of  their  own  line  : 
the  coupons  are  to  be  considered  as  so  many  dis 
tinct  tickets  for  each  road,  sold  by  the  first  com 
pany  as  agent  for  the  others  ; a  and  each  successive 
company  is  responsible  for  all  injuries  to  through 
passengers  while  upon  its  own  line  and  in  passing 
to  the  next  company's  line.2  The  companies  can 
not  be  considered  partners  so  as  to  render  each 
liable  for  injuries  or  losses  occurring  upon  the 
whole  route."  3 

"  Is  not  that  different  from  the  rule  as  to  carry 
ing  goods  and  baggage,  and  the  rule  in  England?  " 

"  As  to  carriers  of  goods  or  baggage  taking  pay 
and  giving  checks  or  tickets  through,  the  first 
company  is  ordinarily  liable  for  the  entire  route  ; 4 
and  in  England  it  has  been  decided  5  that  where  a 
railway  company  contracts  to  carry  a  passenger 
from  one  terminus  to  another,  and  on  the  journey 
the  train  has  to  pass  over  the  line  of  another  rail 
way  company,  the  company  issuing  the  ticket  in 
curs  the  same  responsibility  as  that  other  com 
pany,  over  whose  line  the  train  runs  and  by  whose 
default  the  accident  happens,  would  incur  if  the 
contract  to  carry  had  been  entered  into  by  them. 
The  company  issuing  the  ticket  is  liable  for  the 
negligence  of  the  servants  of  any  other  company 

Sprague  v.  Smith,  29  Vt.  421 ;  Hood  v.  N.  Y.  &  N.  H.  Rw.,  22  Conn.  1 

Knight  v.  P.  S.  &  P.  R.  Rw.,  56  Me.  234 ;  2  Redf.  Am.  R\v.  cases,  458. 

Ellsworth  v.  Tartt,  26  Ala.  733. 

McCormick  v.  Hudson  R.  Rw.,  4  E.  D.  Smith,  181. 

Great  Western  Rw.  v.  Blake,  7  II.  &  N.  987,  Ex.  Ch. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES.     231 

over  whose  line  the  passenger  has  to  pass  to  reach 
his  journey's  end  ;  the  contract  with  the  passenger 
being  the  same  whether  the  journey  be  entirely 
over  the  line  of  the  first  company,  or  partly  over 
that  of  another  company,  and  whether  the  passage 
over  the  other  line  be  under  an  agreement  to  share 
profits  or  simply  under  running  powers  ;  and  that 
contract  is,  not  only  that  they  will  not  be  them 
selves  guilty  of  any  negligence,  but  that  due  care 
will  be  used  in  carrying  the  passengers  from  one 
end  of  the  journey  to  the  other,  so  far  as  is  within 
the  compass  of  railway  management.1  In  fact,  the 
rule  in  regard  to  companies  that  run  over  other 
roads  than  their  own  seems  now  to  be  pretty^  well 
established ;  and  it  is,  that  the  first  company  is  re 
sponsible  for  the  entire  route  and  must  take  the 
risk  of  the  employees  of  the  other  companies  ;2 
and  where  another  company  has  running  powers 
over  the  first  company's  line,  the  first  company  is 
not  liable  for  any  injury  arising  through  the  neg 
ligence  of  such  other  company  ;  though  if  it  were 
a  case  of  goods  they  would  be  liable,  because  they 
are  then  insurers."  3 

"  I  suppose  in  England  you  can  only  sue  the 
company  granting  the  ticket." 

"  Yes.    I  would  just  add,  so  that  you  may  have 

1  Thomas  v.  Rhymney  Rw.  Co.,  L.  R.,  6  Q.  B.  266,  Ex.  Ch. ;  and  John  v. 
Bacon,  L.  R.,  5  C.  P.  437. 

2  Redfield  on  Railways,  vol.  ii.  p.  303 ;  Railway  Co.  v.  Barren,  5  Wall,  90 ; 
Ayles  v.  S.  E.  Rw.,  L.  R.,  3  Ex.  146  ;  Birkett  v.  AVhitehaven  Junction  Rw.,  4 
H.  &  N.  730  ;  Sprague  v.  Smith,  29  Verm.  421,  was  an  exceptional  case. 

s  Wright  v.  Midland  Rw.,  L.  R.,  8  Ex.  137. 


232      INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 

an  exhaustive  discourse  on  the  subject,  that  if 
mischief  arises  from  the  act  of  a  stranger  in  leav 
ing  a  log  of  wood  across  the  railway,  or  doing  any 
other  act  which  might  endanger  a  railway  train 
passing  along  the  line  of  another  company,  an  ac 
tion  cannot  be  maintained  against  the  railway 
company,  because  in  that  case  there  would  not  be 
any  direct  or  indirect  breach  of  duty,  or  breach  of 
contract,  on  their  part ;  they  would  not  be  liable 
on  their  own  line,  or  on  any  other  company's  line 
for  that ; a  the  same  doctrine  was  held  where  a 
stranger  had  wilfully  and  maliciously  placed  a 
stone  upon  the  track  which  threw  off  the  train.2 
If,  however,  a  man  falls  off  the  cars  on  to  the 
track,  because  he  has  no  proper  place  to  sit  and 
his  body  throws  the  train  off,  this  will  afford  no 
excuse  for  damages  to  the  man's  luggage  from  such 
upsetting.3  So,  where  the  covetous  greed  of  a 
young  bullock  induced  him  to  force  his  way 
through  a  hedge  to  gain  some  tempting  grass  that 
grew  luxuriantly  on  the  track,  and  the  collision 
with  him  of  the  train  hurt  Mr.  Buxton  who  was 
on  board;  and  it  appeared  that  B.  had  been  a 
passenger  on  the  defendants'  railway  to  be  carried 
from  Y.  to  T.,  and  to  reach  T.  it  was  necessary 

J  Mytton  «.  Midland  Rw.,  4  II.  &  N.  615 ;  Great  Western  Rw.,  v.  Blake,  7 
U.  &  N.  987,  Ex.  Ch.  ;  Weed  v.  Saratoga  Rw.,  19  Wend.  534. 

2  Latch  v.  Rimmer  Rw.,  27  L.  J.,  Ex.  155  ;  see  also,  Cunningham  v.  Grand 
Trunk  Rw.,  31  U.  C.  Q.  B.  350  ;  Curtis  v.  Rochester  &  Syracuse  Rw.,  18  N.  Y. 
534  ;  Tennery  v.  Pippinger,  1  Phila.  543  ;  Thayer  v.  St.  Louis,  A.  &  T.  II.  Rw. 
22  Ind.  26  ;  Pitts.,  Ft.  Wayne,  &  Chicago  Rw.  v.  Maurer,  21  Ohio,  N.  S.  421. 

3  Goldey  c.  Penn.  Rw.,  30  Penn.  St.  242. 


INJURIES    TO    PASSENGERS    AND    EMPLOYEES. 


233 


to  travel  over  the  line  belonging  O  another  com 
pany,  and  while  journeying  over  the  latter  line  the 
affair  of  the  bullock  took  place.  The  court  held 
that  the  contract  having  been  made  with  the  de 
fendants  they  were  the  proper  parties  to  be  sued. 
A  new  trial  was,  however,  granted  because  the 
judge  had  directed  the  jury  that  it  was  negli 
gence  in  the  defendants  if  the  fences  were  insuffi 
cient  ;  the  court  considering  that  there  was  no 
statutory  obligation  on  the  company,  towards 
their  passengers,  to  keep  up  the  fences." 

"What  would  it  have  been  if  the  bullock 
had  jumped  over  the  hedge  instead  of  pushing 
through  ?  "  asked  Jones. 

"  T  don't  understand."     I  returned. 

"  Why  a  case  of  cattle-lept-sy  to  be  sure.  Au 
revoir." 

i  Buxton  v.  Northeastern  Rw.,  L.  R.,  3  Q.  B.  549. 


234  BAGGAGE    AGAIN. 


CHAPTER  XV. 
BAGGAGE   AGAIN. 

Epistolary  Model.  — Dog  lost.  —  Quitting  a  Moving  Car.  — When  Lia 
bility  for  Luggage  commences.  —  Goods  of  Third  Partv.  —  Left  in 
the  Car.  —  Baggage  lost.  —  English  Rule.  —  Limited  Liability.  — 
Personal  Luggage,  what  it  is. — Watch  — Rings.  —  Pistol.  —  Rail 
road  Porter.  —  Hotel  'Bus. —  Tools  and  Pocket  Pistols.  —  Fiddles 
and  Merchandise.  —  Farewell. 

MY  DEAR  WIFE,  - 

Your  letter  announcing  your  safe  arrival  at 

M ,  if,  indeed,  you  can  be  said  to  have  arrived 

safely,  considering  all  that  befell  you,  made  me 
happy  this  A.  M.  The  tale  of  your  disasters  was 
really  quite  amusing,  and  I  have  passed  some  of 
my  lonely  hours  most  agreeably  considering  the 
law  on  the  various  points. 

So  poor  Fox  is  gone  ;  doubtless  the  mangled  re 
mains  of  that  poor  cur  lie  stark  and  cold  upon  the 
railway  line,  and  crows  are  gathering  in  the  leaden 
skies  to  assist  at  his  funereal  obsequies  ;  or,  per 
chance,  he  may  be  gracing  the  board  at  some  res 
taurant  in  the  familiar  form  of  sausages.  You  say 
it  appears  that  he  slipped  his  head  through  the 
noose  of  the  string  by  which  he  was  tied  in  the 
baggage  car ;  if  this  be  so  the  baggage  man  might 
have  seen  that  he  was  not  securely  fastened  ;  and 


BAGGAGE    AGAIN.  235 

it  was  his  duty  to  lock  him  up,  or  otherwise  keep 
him  safely.1  Make  out  your  bill,  dearest,  we  '11 
make  the  company  pay.  At  what  figure  do  you 
value  him  ?  (I  had,  however,  better  add  that  in  a 
late  case  where  a  dog  was  fastened  in  the  ordinary 
way,  and  there  was  nothing  to  show  that  he  was 
likely  to  escape,  the  carrier  was  held  justified  in 
trusting  to  the  owner  having  properly  secured  the 
animal.)  2 

Poor  Miss  Smith  ought  to  have  been  more  care 
ful  when  she  would  insist  upon  going  into  the  car 
to  bid  you  a  last  adieu,  even  though  her  young 
man  was  waiting  for  her.  She  most  certainly 
should  not  have  attempted  to  leave  the  carriage 
after  it  was  in  motion,  and  when  the  conductor 
warned  her  not.  Even  if  the  conductor  was  to 
blame  in  negligently  starting  the  train  without 
the  usual  premonitory  screech,  and  the  unnecessary 
jerk  assisted  in  the  catastrophe,  the  company  was 
not  responsible  ;  her  conduct  was  the  mere  out 
come  of  that  perverseness  which  is  the  character 
istic  trait  of  the  feminine  nature.3 

You  never  told  me  that  Eliza  Jane  had  taken 
her  trunk  to  the  station  some  half  dozen  hours  be 
fore  the  train  was  to  start;  it  was  rather  verdant 
of  her  so  to  do.  I  presume  the  desire  to  have  a 
quiet  drive  with  her  John  was  the  motive.  The 
loss  of  her  finery  will  teach  her  a  lesson ;  however, 

1  Stuart  v.  Crawley,  2  Stark,  324. 

2  Richardson  r.  Northeastern  R\v.,  L.  R.,  7  C.  P.  75,  note, 
s  Lucas  v.  Taunton  &  New  Bedford  Rw.,  6  Gray,  64. 


236  BAGGAGE    AGAIN. 

it  will  not  really  matter,  as  she  can  recover  the 
value  of  her  "things,"  for  the  responsibility  of  the 
company  as  common  carriers  attaches  as  soon  as 
their  servants  receive  the  baggage  of  the  traveller 
at  the  proper  place  ;  and  the  giving  of  the  check 
does  not  control  the  time  of  the  responsibility  at 
taching.1  One  is  a  passenger,  and  entitled  to  sue 
for  damages  sustained,  the  moment  he  mounts  the 
bus  (run  by  the  company)  on  his  way  to  the  sta 
tion.2  But  where  an  intending  passenger,  fifteen 
minutes  before  the  train  was  to  start,  entered  a 
car  at  the  terminus,  left  his  valise  on  a  vacant  seat 
and  went  out ;  and  on  his  return  shortly  after 
wards  his  baggage  was  gone ;  as  he  did  not  show 
that  there  was  any  one  in  charge  of  the  train  or 
any  other  passenger  on  board,  the  court  would  not 
hold  the  company  liable.3  The  fact  that  you  took 
and  paid  for  her  ticket  will  not  prevent  E.  J. 
maintaining  an  action  for  her  loss,4  for  it  makes 
no  difference  whether  a  passenger  pays  her  own 
fare,  or  some  one  else  kindly  does  it  for  her.5  In 
fact,  if  one  is  travelling  on  a  free  pass  by  which 
the  company  stipulates  to  be  excused  from  all  loss 
or  damage,  still  they  are  responsible  for  the  wilful 
or  careless  misconduct  of  their  servants,6 

1  Camden  &  Amboy  Rw.  v.  Belknap,  21  Wendell,  354;  Hickox  v.  Nauga- 
tuck  Rw.,  31  Conn.  281. 

Buffet  v.  Troy  Rw.,  40  N.  Y.  163. 
Kerr  v.  G.  T.  R.,  24  C.  P.  (Ont.),  209. 
Marshall  v.  York,  N.,  &  B.  Rw.,  11  0.  B.,  655. 
Van  Horn  v.  Kermit,  4  E.  D.  Smith,  453. 
Mobile  &  Ohio  Rw.  v.  Hopkins,  41  Ala.  486. 


BAGGAGE    AGAIN.  237 

But,  unfortunately,  I  fear  that  you  must  quietly 
submit  to  the  loss  of  those  things  of  yours  which 
she  had  in  her  trunk,  for  the  contract  to  carry  was 
with  her  alone  ;  the  company  thought  that  the 
trunk  contained  her  luggage ;  if  they  had  been  told 
that  it  was  not  they  might  have  objected  to  carry, 
considering  the  Saratogas  you  had,  not  to  speak  of 
bandboxes,  bundles,  and  parcels  ;  and  even  if  you 
had  had  no  luggage  yourself,  it  would  have  been 
all  the  same  ; ]  and  as  they  were  not  Eliza  Jane's 
I  don't  suppose  she  can  sue  for  them  either. 

And  so  that  pretty  dressing-case  which  I  gave 
you  on  that  memorable  day  when  we  twain  became 
one  flesh,  is  gone  !  you  say  that  you  put  it  under 
your  seat  in  the  car,  and  that  it  must  have  been 
left  there  when  the  porter  carried  your  traps  to 
the  cab  at  your  journey's  end ;  well,  I  cannot  say 
that  placing  it  where  you  did  was  a  very  wise 
thing,  still  as  another  lady  who  once  did  the  same 
in  England  recovered  the  value  of  her  dressing- 
case  (although  she  failed  to  recover  the  case  it 
self),2  so  doubtless  if  money  will  dry  your  tears 
for  the  loss  of  that  memento  of  our  wedding-day, 
you  will  be  consoled.  Probably  the  fact  of  your 
name  and  address  not  being  on  it  will  not  affect 
your  rights  in  the  matter.3  A  railway  company  is 
liable  for  the  loss  of  a  passenger's  luggage  though 

1  Becher  v.  G.  E.  Rw.,  L.  R.,  5  Q.  B.  241. 

2  Richards  v.  London,  B.,  &  S.  C.  Rw.,  7  C.  B.  839. 

3  Campbell  v.  Caledonian  Rw.,  14  Ct.  of  Sess.  Cas.  2  Per.  806 ;  1  S.  M.  &  P. 
742. 


238  BAGGAGE    AGAIN. 

carried  in  the  carriage  in  which  he  himself  is  trav 
elling.1  Very  special  circumstances,  and  circum 
stances  leading  irresistibly  to  the  conclusion  that 
the  traveller  takes  such  personal  control  and 
charge  of  his  luggage  as  altogether  to  give  up  all 
hold  upon  the  company,  are  required  before  a 
court  will  say  that  the  company  as  common  car 
riers  are  not  liable  in  the  event  of  a  loss.2  Even 
if  luggage  is  never  given  to  a  railroad  servant  but 
kept  by  the  passenger  in  his  own  possession,  still 
in  the  eye  of  the  law  it  is  considered  to  be  in  the 
custody  of  the  company,  so  as  to  render  them  re 
sponsible  for  the  loss.3  In  England,  a  railway 
company  that  receives  goods  or  luggage,  and  books 
it  for  a  certain  place  beyond  the  terminus  of  its 
road  (unless  it  specially  stipulates  to  be  exempt 
for  whatever  happens  on  other  lines),  is  responsi 
ble  for  any  evil  that  befalls  it  before  its  arrival  at 
its  journey's  end,  even  though  it  happens  while 
the  goods  are  passing  over  the  rails  of  another 
company ; 4  in  fact  one  has  no  remedy  except 
against  the  company  with  whom  the  contract  is 
made.  But  the  justice  and  soundness  of  the  Eng 
lish  decisions  have  been  seriously  questioned  by 

1  Le  Contour  v.  London  &  S.  AY.  R\v.,  L.  R.,  I  Q.  B.  54. 

2  Ibid. 

3  Great  Northern  Rw.  v.  Shepherd,  8  Ex.  30  ;  but  see  Tower  v.  Utica  & 
Sen.  Rw.,  7  Hill,  N.  Y.  47. 

*  Muschamp  v.  Lancaster  &  Preston  Junction  Rw.,  8  M.  &  W.421 ;  Watson 
r.  Ambergate,  N.  &  B.  Rw.,  15  .Tur.  448;  Bristol  &  Ex.  Rw.  v.  Collins,  7 
House  Lords  Cas.  194.  The  same  rule  applies  in  Canada,  Smith  v.  G.  T.  Rw. 
35  U.  C.  Q.  B.  547. 


BAGGAGE    AGAIN.  239 

the  American  courts,  who  think  that  the  carrier  is 
only  liable  for  the  extent  of  his  own  route,  and 
for  safe  storage,  and  safe  delivery  to  the  next  car 
rier.1  Many  cases,  however,  follow  the  English 
ones,  and  others  hold  that  the  responsibility  is  only 
primd  facie,  and  may  be  controlled  by  general 
usage  among  carriers,  whether  such  usage  be 
known  to  the  traveller  or  not.2  (But  this  subject 
is  so  mixed  that  I  will  show  you  what  Judge  Red- 
field  says  when  you  get  back  again.)3  Where  dif 
ferent  railways  —  forming  a  continuous  line  —  run 
their  cars  over  the  whole  line  and  sell  tickets  for 
the  whole  route,  checking  baggage  through,  an 
action  lies  against  any  company  for  the  loss  of  bag 
gage.4 

Of  course  if  there  was  any  notice  on  your 
ticket  limiting  the  liability  of  the  company  with 
regard  to  your  traps,  you  are  bound  thereby,  even 
if  you  never  read  it ; 5  for  railway  companies,  as 
well  as  other  carriers,  may  limit  their  responsi 
bility  by  special  contract  of  which  notice  is  given 
to  the  passenger  or  owner,  and  to  which  he  as 
sents  or  does  not  object,  subject  to  such  excep 
tion,  limitation,  or  qualification  as  reason  and  jus- 

1  Farmers'  &  Mechanics'  Bank  v.  Champlain  Trans.  Co.,  16  Vt.  52  ;  18  Vt. 
131 ;  23  Vt.  186  ;  Van  Santvoord  v.  St.  John,  6  Hill,  N.  Y.  158. 

2  Southern  Express  Co.  v.  Shea,  38  Ga.  519  ;  Cincinnati,  etc.,  Rw.  v.  Pon 
tius,  19  Ohio  (N.  S.),  221. 

3  Redfield  on  Railways,  vol.  ii.,  p.  126,  et  seq. 

*  Hart  v.  Rensselaer  &  Saratoga  Rw.,  4  Seld.  37. 

s  Zunz  v.  South-eastern  Rw.,  L.  R.,  4  Q.  B.  539  ;  but  see  Kent  v.  Midland 
Rw.  Co.,  L.  R.,  10  Q.  B.  1 ;  Henderson  v.  Stevenson,  L.  R.,  2  S.  &  D.  470. 


240  BAGGAGE    AGAIN. 

tice  may  require  and  a  judge  and  jury  decide  with 
reference  to  each  particular  case.1 

I  don't  exactly  know  what  you  had  in  that 
dressing-case  of  yours,  but  the  rule  is,  "  that 
whatever  a  passenger  takes  with  him  for  his  own 
personal  care  and  convenience,  or  even  for  his 
instruction  and  amusement,2  according  to  the  hab 
its  or  wants  of  the  particular  class  to  which  he 
belongs,  either  with  reference  to  the  immediate 
necessities  or  the  ultimate  purpose  of  the  journey, 
must  be  considered  as  personal  luggage,"  for 
the  loss  of  which  the  carrier  is  liable  ;  3  and  ar 
ticles  of  jewelry,  such  as  a  lady  usually  wears,  are 
considered  personal  luggage.4  So  is  a  watch ;  5 
though  in  Tennessee  a  watch  was  not  deemed  a 
proper  part  of  necessary  baggage.6  Where  was 
yours  ?  So  are  finger  rings.7  In  one  case  a  man 
was  allowed  to  have  two  gold  chains,  two  gold 
rings,  a  locket  and  a  silver  pencil-case ; 8  so  I  will 
leave  you  to  calculate  how  many  a  lady  should  be 

1  Carr  v.  Lancashire  &  York  Rw.,  7  Ex.  707 ;  Redfield  on  Railways,  vol.  ii., 
p.  101.    Where  the  condition  on  ticket  was  "  that  the  company  does  not  hold 
itself  responsible  for  any  delay,  detention,  or  other  loss  arising  off  its  lines,- 
and  the  baggage  was  never  delivered  to  any  other  company,  held  that  mean 
ing  of  last  words  was  "  out  of  the  custody  of  the  company."    Kent  v .  Mid 
land  Rw.,  L.  R.,  10  Q.B.I. 

2  Hawkins  v.  Hoffman,  6  Hill,  586. 

3  Cockburn,  C.  J.,  in  Macrow  v.  Great  Western  Rw.,  L.  R.,  6  Q.  B.  625  ; 
Great  Northern  Rw.  v.  Shepherd,  8  Ex.  38. 

*  Brooke  v.  Pickwick,  4  Bing.  218  ;  McGill  •».  Rowand,  3  Penn.  St.  451. 
c  Jones  v.  Voorhees,  10  Ohio,  145;  Miss.  C.  Rw.  v.  Kennedy,  41  Miss.  471. 

6  Bomer  v.  Maxwell,  9  Humphrey,  621. 

7  MtCormick  v.  Hudson  River  Rw.,  4  E.  D.  Smith,  181. 

8  Bruty  v.  Grand  Trunk  Rw.,  32  U.  C.  Q.  B.  66. 


BAGGAGE    AGAIN.  241 

allowed  to  carry  about  with  her.  Your  swell 
gold  spectacles  would  also  come  within  the  cate 
gory  ; l  and  by  the  way,  that  linen  which  you 
bought  for  my  new  shirt  fronts  would  be  in 
cluded  2  (if  you  were  good  enough  to  take  it  with 
you  to  make  them  up,  and  unfortunate  enough  to 
lose  it)  ;  and  that  little  present  you  were  taking 
for  your  sister  —  perhaps.3  I  don't  know  what 
else  you  had  in  that  case  which  will  now  know  its 
place  on  our  dressing  table  no  more  forever.  Of 
course,  your  brushes,  razors  —  pardonnez  moi, 
madame,  I  forgot  to  whom  I  was  writing  —  pen 
and  ink,  etc.,  are  fairly  baggage  within  the  mean 
ing  of  the  term.4 

Not  content  with  the  abandoment  of  your  dress 
ing-case,  you  say  you  lost  a  bandbox  by  stupidly 
letting  a  porter  carry  it  for  you  to  a  cab,  which 
you  could  not  afterwards  find :  well,  if  it  is  the 
custom  on  that  line  for  the  company's  porters  to 
assist  passengers  to  obtain  cabs,  within  the  station 
grounds,  and  place  their  baggage  therein,  the 
company  will  be  liable  for  this  loss  also.  This 
my  old  friend  Butcher  satisfactorily  established  : 
he  had  a  carpet-bag  with  him  containing  a  large 
sum  of  money,  and  this  he  wisely  kept  in  his  own 
possession  while  journeying  up  to  London.  On 

1  Re  II.  M.  Wright,  Newberry  Admiralty,  494. 

2  Duffy  v.  Thompson,  4  E.  D.  Smith,  178. 

3  Great  Western  Rw.  v.  Shepherd,  8  Ex.  38 ;  but  see  Bell  v.  Drew,  4  E.  D. 
Smith,  59. 

*  Hawkins  r.  Hoffman,  6  Hill,  N.  Y.  Rep.  589. 
W.  &  R.  OF  T.-16 


242  BAGGAGE    AGAIN. 

arriving  at  the  station  there,  however,  he  un 
wisely —  even  Jove  sometimes  nods  —  let  a  porter 
take  it  from  him  for  the  purpose  of  securing  a 
cab.  The  porter  put  the  bag  in  a  fly  and  then 
returned  to  the  platform  to  get  my  friend's  other 
luggage.  Meanwhile  cabby  disappeared  and  the 
bag  and  all  that  was  therein  was  lost.  The  court 
considered  the  company  liable,  as  there  had  been  a 
delivery  of  the  bag  to  them  to  be  carried,  and 
no  re-delivery  to  Butcher.1  Where  baggage  has 
been  lost,  the  owner  may  recover  all  reasonable 
expenses  incurred  in  his  hunt  after  it,  such  as 
telegraphing,  cab-hire,  etc. :  but  his  loss  of  time  is 
a  dead  loss.2 

Your  next  misfortune  was  the  loss  of  that  new 
book  I  gave  you,  wherewith  to  beguile  the  weari 
ness  of  the  way ;  you  say  you  left  it  in  the  omni 
bus  that  took  you  up  to  the  hotel ;  well,  omnibus 
drivers  who  take  passengers  from  the  stations 
about  the  towns  are  unquestionably  responsible 
as  common  carriers.3  Although  in  England  it  has 
been  held  that  a  cab-driver  or  hackney-coachman 
was  not ; 4  still  they  are  bound  to  use  an  ordinary 
degree  of  care.  If  the  hotel  proprietor  under 
takes  to  provide  free  transit  to  and  from  the  cars, 
and  you  lost  your  book  in  his  'bus,  he  is  liable.5 

1  Butcher  v.  London  &  S.  W.  Rw.,  16  C.  B.  13. 

2  Morrison  r.  E.  &  N.  A.  llw.,  2  Pugsley's  Rep.  No.  3,  p.  295. 
s  Peixotti  v.  McLaughlin,  1  Strob.  468. 

<  Brind  v.  Dale,  8  C.  &  P.  207 ;  Ross  v.  Hill,  2  C.  B.  887. 
s  Dickinson  v.  Winchester,  4  Gush.  115. 


BAGGAGE   AGAIN.  243 

Although  it  deeply  pains  me  to  find  the  slight 
est  fault  with  my  spouse,  still  I  must  say  that  I 
think  that  you  have  been  a  little  careless  during 
this  trip  ;  in  fact  you  have  shown  that  the  char 
acter  your  mother  gave  you  was  not  quite  a  libel, 
when  she  said  that  you  would  lose  your  head  were 
it  not  securely  fastened  on,  and  your  tongue  were 
it  not  in  incessant  use. 

While  I  am  writing  to  you  in  this  strain,  I  may 
as  well  give  you  a  little  further  information  con 
cerning  what  you  may,  and  what  you  may  not, 
carry  as  personal  baggage  ;  though  doubtless  you 
will  soon  forget  all  that  I  say,  or  if  not,  —  at  all 
events,  —  will  not  heed  it,  such  is  the  forgetfulness 
and  perverseness  of  that  sex  whose  love,  as  Prince 
Charles  Edward  said,  "is  writ  on  water,  whose 
faith  is  traced  on  sand." 

Besides  what  I  have  already  mentioned,  if  you 
are  a  sportsman  you  may  take  a  gun,  if  a  disciple 
of  the  gentle  Izaak  Walton,  the  necessary  instru- 
menta  bella  ;  l  if  you  are  a  joiner  —  I  don  't  mean 
a  parson  —  you  may  take  a  reasonable  amount  of 
tools  with  your  clothes,2  although  perhaps  you 
can't ; 3  for  in  Pennsylvania  a  carpenter  was  per 
mitted  to  carry  a  reasonable  amount  of  his  tools 
with  him,2  while  in  Ontario  a  brother  of  the  same 
craft  was  not  ;3  the  judge  thinking  that  a  black- 

1  Macrow  v.  Great  Western  Rw.,  L.  R.,  6  Q.  B   622 ;  Hawkins  v.  Hoffman, 
6  Hill,  N.  Y.  Rep.  589. 

2  Porter  v.  Hildebrand,  14  Penn.  St.  129. 

s  Bruty  v.  Grand  Trunk  Rw.,  32  U.  C.  Q.  B.  66. 


244  BAGGAGE    AGAIN. 

smith  might  just  as  reasonably  expect  to  carry  his 
forge,  or  a  farmer  his  plough,  as  part  of  his  bag 
gage.  You  may  take  new  clothing  and  materials 
for  yourself  and  family,  though  not  for  others ;  1 
if  you  are  of  a  nervous  disposition  and  desire  to 
defend  yourself  against  thieves  and  robbers,  you 
may  take  a  pocket  pistol,  —  don't  suppose  I  mean 
a  brandy  flask,  —  if  you  are  a  bellicose  man  of 
honor  a  couple  of  duelling  pistols  will  be  allowed,2 
or  even  a  gun,3  although  in  Maryland,  one  was  not 
allowed  to  take  a  colt.4  A  theatre  goer  may  take 
an  opera  glass ; 5  a  student  on  his  way  to  col 
lege,  manuscripts  necessary  for  the  prosecution 
of  his  studies  ; 6  but  an  artist  cannot  carry  his 
pencil  sketches  as  luggage  in  England  ; 7  although 
Cockburn,  C.  J.,  thought  he  could,  and  his  easel 
as  well.8  J.  Wilson,  in  a  Canadian  case,  thought 
that  one  musically  inclined  might  take  a  concer 
tina,  or  a  flute,  or  that  instrument  in  the  playing 
of  which  a  western  writer  says  "  the  resined  hair 
of  the  noble  horse  travels  merrily  over  the  intes 
tines  of  the  agile  cat;  "9  but  fortunately  for  man 
kind  in  general  the  majority  of  the  court  held 
otherwise. 

Dexter  v.  S.  B.  &  N.  Y.  Rw.,  42  N.  Y.  326. 

Woods  v.  Devon,  13  111.  746  ;  Bruty  v.  G.  T.  Rw.  32  U.  C.  Q.  B.  66. 

Davis  v.  Cayuga  &  S.  Rw.,  10  How.  Prac.  330. 

Giles  v.  Fauntleroy,  13  Md.  126. 

Toledo  &  Wabash  Rw.  v.  Hammond,  33  Ind.  379. 

Hopkins  v.  Westcott,  7  Am.  Law  Reg.  (N.  S.),  533. 

Mytton  v.  Midland  Rw.,  4  H.  &  N.  615  ;  Morritt  v.  N.  E.  R.,  L.  R.,  1  Q.  B. 


D. 


302. 

Macrow  v.  Great  Western  Rw.,  L.  R.,  6  Q.  B.  622. 
Bruty  v.  Grand  Trunk  Rw.,  32  U.  C.  Q.  B.  66. 


BAGGAGE    AGAIN.  245 

You  cannot  carry  merchandise,  either  in  Eng 
land,1  the  United  States,2  or  the  Dominion  of 
Canada,3  unless,  indeed,  it  is  carried  openly,  or  so 
packed  that  the  carrier  can  see  what  it  is  and 
does  not  object  to  it ;  nor  samples,  if  you  belong 
to  the  confraternity  of  commercial  travellers  ; 4 
nor  can  a  banker  take  money  as  such ; 5  nor  can 
one  carry  silver  spoons,  nor  surgical  instruments, 
unless  he  is  a  disciple  of  Galen  and  Hippocrates;6 
nor  boxes  of  jewelry  for  sale;7  nor  silver-ware;8 
nor  the  regalia  and  jewels  of  a  society  ; 9  nor  a 
sewing-machine  ;  10  and  it  is  beyond  a  peradven- 
ture  that  if  a  carrier  accepts  a  trunk,  or  baggage, 
containing  such  tabooed  articles,  without  knowl 
edge  of  such  contents,  he  incurs  no  liability."  If 
he  is  deceived  into  taking  it,  he  is  not  bound  to 
carry  it  safely.11 

But  really,  my  dear,  I  must  draw  these  re 
marks  to  a  close,  as  the  parsons  say  in  their  ser 
mons.  You  cannot  complain  that  this  letter  is 

1  Great  Western  Rw.  v.  Shepherd,  8  Ex.  30  ;  Macrow  v.  Great  Western  Rw., 
L.  R..6Q.  B.  616. 

2  Pardee  v.  Drew,  25  Wend.  459 ;  Collins  v.  Boston  &  Maine  Rw.,  10  Cush. 
506. 

Shaw  v.  Grand  Trunk  Rw.,  7  U.  C.  C.  P.  493. 

Cahill  v.  London  &  N.  W.  Rw.,  13  C.  B.  (N.  S.),  818  ;  Belfast  B.  L.  &  C. 
Rw.  v.  Keys,  9  House  Lords  Cas.  556 ;  Hawkins  v.  Hoffman,  6  Hill,  586  ; 
D  bblc  v.  Brown,  12  Ga.  217. 

Phelps  v.  London  &  N.  W.  Rw.,  19  C.  B.  (N.  S.),  321. 

Giles  v.  Fauntleroy,  13  Md.  126. 

Richards  v.  Wescott,  2  Bosw.  589. 

Bell  v.  Drew,  4  E.  D.  Smith,  59. 

Nevins  v.  Bay  State  S.  B.  Co.,  4  Bosw.  225. 
10  Bruty  r.  Grand  Trunk  Rw.,  32  U.  C.  Q.  B.  66. 
»  Sleat  r.  Fagg,  5  B.  &  Al.  342. 


246  BAGGAGE    AGAIN. 

too  short.  There  are  several  items  of  news  —  of 
babies  born,  brides  be-wed,  bodies  buried,  —  and 
such  like  trivialities,  of  which  I  might  have  told 
you  ;  but  as  you  spoke  about  your  losses  I  con 
cluded  that  I  would  send  you  an  instructive  note, 
and  let  vain  trifles  rest  quiescent  until  your  re 
turn. 

Though  you  may  think  that  this  epistle  smacks 
somewhat  of  business,  yet  please  reflect  that  you 
are  my  sleeping  partner,  and  spend  the  greater 
portion  of  the  profits  of  my  office,  and  so  'tis  be 
coming  that  you  should  be  slightly  acquainted 
with  legal  matters,  especially  as  you  are  the 
daughter  of  my  mother-in-law. 

Adu  !  adu  !  O  reservoir  ! 
Your 

SPANISH  GKANDEE. 


TELEGRAMS    AND    FIRE.  24? 


CHAPTER  XVI. 
TELEGRAMS    AND   FIRE. 

Assault. — Authority  of  Officials.  — A  dear  Kiss.  —  Arresting  Passen 
gers.  —  Telegraphic  Messages.  —  Interesting  Examples.  —  Who  can 
sue  for  Mistake.  —  Fire-fiend's  Pranks.  — Train  Arrives. — Liabil 
ity  Ceases.  —  Trunks  in  Warehouse.  —  Baggage  left  at  Station.  — 
Dissolving  Domestic  View. 

WHEN  the  day  arrived  on  which  my  wife  was 
to  return  to  me,  I  determined  to  go  and  meet  her 
at  N.,  so  as  to  be  on  the  spot  to  keep  an  eye  on 
her  baggage  when  she  reached  the  station  and 
avoid  further  loss  and  accident. 

I  bought  my  ticket  and  got  into  the  proper  car, 
but  just  as  the  train  was  on  the  point  of  starting 
I  asked  the  porter  if  I  was  in  the  right  carriage, 
he  replied,  I  was  not,  and  must  get  out ;  I  hesi 
tated,  as  the  train  was  in  motion,  so  he  caught 
hold  of  me  and  violently  pulled  me  out.  We  fell 
on  the  platform  and  I  was  considerably  hurt;  and 
what  was  as  bad,  the  cars  went  on  and  left  me  be 
hind.  I  went  in  search  of  the  general  superin 
tendent  of  the  line,  as  I  was  determined  to  seek 
redress,  for  a  person  who  puts  another  in  his  place 
to  do  a  class  of  acts  in  his  absence  necessarily 
leaves  him  to  determine,  according  to  the  circum- 


248  TELEGRAMS    AND    FIRE. 

stances  which  arise,  when  an  act  of  that  class  is 
to  be  done  ;  consequently  he  is  answerable  for  the 
wrong  of  the  person  so  intrusted,  either  in  the 
manner  of  doing  such  an  act,  or  in  doing  such  an 
act  under  circumstances  in  which  it  ought  not  to 
have  been  done  ;  provided  that  what  is  done  is 
not  done  from  any  caprice  of  the  servant,  but  in 
the  course  of  the  employment.1  And  in  a  similar 
case  it  was  held  that  the  act  of  the  porter,  in 
pulling  a  man  out  of  the  carriage,  was  an  act 
done  within  the  course  of  his  employment  as  the 
company's  servant,  and  one  for  which  they  were 
therefore  responsible.2 

Railway  companies  are  liable  for  all  the  acts  of 
their  servants  and  agents  committed  in  the  dis 
charge  of  their  business  and  their  employment, 
within  the  range  of  such  employment,  whether 
wilful  or  negligent.3  The  injured  person  has  to 
show  that  his  assailant  was  not  only  a  servant  of 
the  company,  but  that  he  had  authority  so  to 
treat  him,  or  that  such  conduct  was  subsequently 
ratified  by  the  company.4  Where  a  conductor 
chancing  to  be  alone  in  the  car  with  Miss 
Cracker,  cracked  some  jokes,  sat  down  beside  her, 
put  his  hand  in  her  muff  with  her's  (although 
she  objected  that  there  was  no  room  for  it),  threw 

1  Bayley  v.  Manchester,  etc.,  Rw.,  L.  R.,  7  C.  P.  415. 

2  Ibid. 

s  Phil.  &  R.  Rw.  v.  Derby,  14  How.  468;  Noyes  v.  Rutland,  etc.,  Kw.,  27 
Vt.  110  ;  Yarborough  v.  Bank  of  England,  16  East.  6 
-*  Roe  v.  Berkenhead  &  L.  Rw.,  7  W.  II.  &  G.  36. 


TELEGRAMS    AND    FIUE.  249 

his  arms  around  her  neck,  and  kissed  her  five  or 
six  times,  while  she  struggled  to  escape.  Miss 
C.  to  have  sweet  revenge,  the  kisses  being  so  sour, 
and  not  relishing  such  blandishments  and  dislik 
ing  chaps  about  her  lips,  or  a  railway  man's  bill 
stuck  in  her  face,  had  him  arrested  and  fined  $25 
for  an  assault :  the  company  then  dismissed  the 
gay  Lothario  from  their  employ,  and  were  rather 
surprised  when  the  injured  female  sued  them  and 
recovered  against  them  $1,000.  The  court  con 
sidered  the  verdict  was  not  excessive,  and  that  a 
carrier's  contract  bound  him  to  protect  his  pas 
sengers  against  all  the  world,  which  in  this  case 
had  not  been  done.  It  was  not  denied  that  if 
such  an  attack  had  been  made  by  a  stranger  and 
the  conductor  had  neglected  to  protect  Miss  C. 
the  company  would  have  been  liable,  but  it  was 
contended  that  the  company  was  not  responsible 
for  the  malicious  breach  of  the  contract  by  their 
servant,  the  conductor.  Ryan,  C.  J.,  thought 
such  a  contention  was  much  like  saying  that  if 
one  hired  a  dog  to  guard  sheep  against  wolves, 
and  the  dog  slept  while  a  wolf  made  away  with  a 
sheep,  the  owner  of  the  dog  would  be  liable  ;  but  if 
the  dog  played  wolf,  and  devoured  the  sheep  him 
self,  the  owner  would  not  be  liable.  Every  wo 
man  has  a  right  to  assume  that  when  she  travels 
in  a  car  she  will  meet  nothing,  see  nothing,  hear 
nothing,  to  wound  her  delicacy,  or  insult  her  wo 
manhood.1 

i  Craker  v.  Chicago  &  N.  W.  Rw.,  36  Wis.  657. 


250  TELEGRAMS    AND    FIRE. 

Some  courts  have  held  that  a,  railway  company 
can  only  act  through  their  officers  and  servants, 
and  as  they,  of  necessity,  commit  their  trains  abso 
lutely  to  the  charge  of  men  of  their  own  appoint 
ment,  and  passengers  of  necessity  commit  to  them 
their  safety  and  comfort  while  journeying,  the 
whole  power  and  authority  of  the  company  for 
that  purpose  is  vested  on  those  officers ;  and  as 
far  as  travellers  are  concerned  they  are  to  be  con 
sidered  as  the  corporation  itself ;  and  the  latter  is 
as  responsible  for  the  acts  of  the  officers  in  run 
ning  the  train  towards  the  passengers  in  it,  as  the 
officers  would  be  for  themselves  were  they  the 
proprietors  of  the  road  and  train.1  Exemplary 
damages,  however,  will  not  be  given  against  a 
company  for  the  malicious  acts  of  its  agent,  unless 
it  is  shown  that  the  company  expressly  author 
ized  or  confirmed  the  deeds.2 

A  railway  is  supposed  to  have  at  its  stations 
officers  with  authority  to  do  all  such  things  as  are 
necessary  and  expedient  for  the  protection  of  the 
company's  property  and  interests,  and  for  the  ap 
prehension  of  wrong-doers  ;  and  where  there  are 
persons  present  who  are  acting  as  if  they  had  ex 
press  authority,  it  is  primd  facie  evidence  that 
they  had  such  authority,3  and  the  company  will 

1  Bass  v.  Chicago  &  N.  W.  Rw.,  36  Wis.  450 ;  Craker  v.  C.  &  N.  W.  Rw., 
33  Wis.  657  ;  Goddard  v.  G.  T.  R  ,  57  Me.  202. 

2  M.  &  M.  R.  R.  Co.  r.  Finncy,  10  Wis.  388 ;  but  see  Goddard  v.  G.  T.  R.,  57 
Me.  202  ;  Sanford  r.  Rw.  Co., 23  N.  Y.  343. 

3  Goff  v.  Gt.  Northern  Rw.,  3  E.  &  E.  672. 


TELEGRAMS    AND    FIRE.  251 

be  answerable  if  their  officers,  in  the  exercise  of 
their  discretion,  make  a  mistake  and  apprehend 
an  innocent  person,  or  commit  an  assault  through 
an  excess  of  duty,  or  do  any  other  act  that  cannot 
be  justified.1  And  it  makes  no  difference  with 
regard  to  the  responsibility  of  the  company  that 
the  servant  disobeyed  the  directions  of  his  supe 
riors,  if  he  was  acting  within  the  scope  of  his  em 
ployment  at  the  time.2  But  when  he  does  an  act 
which  he  has  no  authority  to  do,  the  company  are 
not  liable  ;  3  nor  are  they  when  he  does  an  act 
which  the  company  themselves  have  no  authority 
to  do.4  And  thus  a  seeming  paradox  arose  in  one 
case  where  a  station  master  arrested  a  man  for 
not  paying  the  fare  of  a  horse  he  had  with  him, 
and  it  was  held  that  (as  the  company  itself  could 
not  have  done  so)  the  company  were  not  liable, 
though  had  the  zealous  official  arrested  him  for 
not  paying  his  own  fare,  damages  might  have 
been  recovered  against  the  company.5 

Thus  ruminating  over  my  wrongs  and  chewing 
the  bitter  cud  of  hatred  and  malice,  I  found  my 
way  into  the  office  of  the  chief  official,  but  as  that 
important  functionary  was  non  est,  I  had  to  nurse 
my  wrath  until  some  more  convenient  season. 

Just  then  a  friend  came   up   and  showed  me  a 

1  Giles  v.  Taff  Vale  Rw.,  2  E.  &  B.  822  ;  Moore  v.  Metropolitan  Rw.,  L.  R., 
8  Q.  B.  36. 

2  Phil.  &  Read.  Rw.u.  Derby,  14  How.  (U.  S.),  468. 

3  Edwards  v.  London  &  N.  W.  Rw.,  L.  R.,  5  C.  P.  445. 
*  Poulton  T.  London  &  S.  W.  Rw.,  L.  R.,  2  Q.  B.  534. 
s  Ibid. 


252  TELEGRAMS    AND    FIRE. 

telegram  which  seemed  perfectly  enigmatical  and 
worthy  of  the  Sphinx  of  yore,  and  we  thus  got 
speaking  concerning  such  messages  (or  as  they 
are  often  rightly  called  tell-o-crams).  He  asked 
me  if  I  had  ever  noticed  the  case  where  a  gentle 
man  telegraphed  for  two  hand  bouquets,  and  the 
operator  changed  hand  into  hund  and  added  red, 
making  the  order  for  "  Two  hundred  bouquets." 
The  florist  delighted  at  the  extensive  order,  pro 
cured  a  quantity  of  expensive  flowers,  which  the 
other  party  of  course  refused  to  accept,  so  the  poor 
flower-man  had  to  sue  the  company  for  damages, 
which  he  recovered,1  as  well  on  the  ground  of 
breach  of  contract,  as  of  breach  of  duty,  the  tele 
graph  company  being  public  servants. 

"  I  believe  that  where  the  company  give  notice 
that  they  will  not  be  responsible  except  for  re 
peated  messages,  such  a  condition  will  be  held 
good,"  I  said. 

"  Yes.2  There  have  been  several  cases  showing 
the  damage  which  the  company  will  have  to  pay 
for  mistakes  in  the  performance  of  their  duty  :  in 
one  where  a  merchant  sent  the  message  4  Stop 
sewing  pedal  braid  till  I  see  you,'  and  it  was  de 
livered  'Keep  sewing,  etc.,  etc.,'  and  in  conse 
quence  a  large  quantity  of  unfashionable  braid 
was  manufactured  which  the  merchant  received 
and  disposed  of  in  the  best  manner.  He  was 

1  N.  Y.  &  Wash.  Print.  Tel.  Co.  v.  Dryburgh,  35  Penn.  St.  298. 

2  McAndrew  f.  Electric  Tel.  Co.,  17  C.  B.  3;  Wann  v.  Western,  etc.,  Tel. 
Co.,  37  Mo.  472. 


TELEGRAMS    AND    FIRE.  253 

held  entitled  to  recover  the  whole  loss  sustained 
in  consequence  of  the  error;1  and  it  was  so  held 
where  the  message  was  changed  from  c  5,000  sacks 
of  salt,'  into  5,000  casks:  2  the  fact  that  the  error 
was  made  in  the  transmission  because  the  message 
was  unintelligible  to  the  operator  will  not  excuse 
the  company,  so  long  as  the  words  were  plain."  2 

"  How  is  the  law  in  England  ?  " 

"  It  has  been  held  there,  and  in  Canada,  that 
the  party  employing  the  telegraph  company,  or 
sending  the  message  on  his  own  account,  is  the 
only  party  who  can  maintain  an  action  for  any 
failure  to  perform  their  duty  in  respect  of  the 
message.3  And  where  a  message  was  sent  for 
three  rifles  and  when  received  it  read  the  rifles, 
and  the  plaintiff  supposing  it  referred  to  a  former 
communication  sent  the  sender  of  the  despatch  fifty 
rifles,  the  number  before  named  ;  and  these  were 
refused ;  the  plaintiff  sued  the  sender  for  the 
price,  but  the  court  held  that  the  defendant  was 
not  responsible  for  the  mistake  in  transmitting 
the  message,  and  that  the  plaintiff  could  only  re 
cover  for  three  rifles.4  The  American  jurists  think 
that  the  English  courts  are  guilty  of  an  incon 
sistency,  if  not  of  a  blunder,  in  holding  that  the 
only  party  who  can  sue  the  company  is  not  re- 

1  Lockwood  v.  Ind.  Line  of  Tel.  Co.,  N.  Y.,  C.  P.  1865. 

2  Rittenhouse  v.  The  same,  1  Daly,  0.  P.  474. 

3  Playford  v.  United  Kingdom  Tel.  Co.,  L.  R.,  4  Q.  B.  706  ;  Feaver  v.  Mon 
treal  Tel.  Co., 23  U.  C.  C.  P.  150. 

*  Ilenkel  v.  Pape,  L.  R.,  6  Ex.  7. 


254  TELEGRAMS    AND    FIRE. 

sponsible  tor  the  mistake.  They  say  that  the 
party  who  suffers  by  the  mistake  should,  at  all 
events,  be  allowed  to  maintain  an  action  to  re 
cover  the  damage  sustained  by  him  ;  and  they  say 
that  is  the  rule  throughout  the  republic.1  In  an 
action  against  the  company  that  delivers  the  mes 
sage,  where  it  has  passed  over  several  lines,  they 
may  excuse  themselves  by  showing  that  the  neg 
ligence  complained  of  was  that  of  some  prior 
line.2  Where  there  are  several  connected  lines 
the  company  that  took  the  message  are  generally 
liable  for  any  negligence  or  mistake  in  the  trans 
mission."  3 

"  It  seems  to  be  the  law  that  the  regulations  of 
a  telegraph  company  relieving  them  from  liability, 
unless  the  message  is  repeated,  are  reasonable, 
and  will  free  them  from  the  effects  of  many  mis 
takes  ; 4  but  they  will  not  be  construed  so  as  to 
release  the  company  from  liability  occasioned  by 
their  own  wilful  misconduct  or  negligence,5  as 
where  our  was  changed  into  your?  or  the  mes 
sage  was  never  sent,7  or  delayed  in  delivery  ;  8  there 

1  Redfield  on  Railways,  vol.  ii.,  p.  314. 

2  La  Grange  r.  S.  W.  Tel.  Co.,  25  La.  An.  383. 
s  De  Rutte  v.  Tel.  Co.,  1  Daly,  547. 

*  McAndrcw  v.  Electric  Tel.  Co.,  17  C.  B.  3 ;  but  see  Tyler  v.  W.  U.  Tel. 
Co.,  5  Chi.  Leg.  News,  550;  Wolf  v.  W.  Tel.  Co.,  62  Pa.  St.  83. 

e  N.  Y.  &  Wash.  Tel.  Co.  «.  Dryburgh,  35  Penn.  St.  298  ;  True  v.  Inter 
national  Tel.  Co.,  60  Maine,  9;  Sweetland  v.  Illinois,  etc.,  Tel.  Co.,  27  Iowa, 
433. 

«  Sellers  v.  W.  U.  Tel.  Co.,  3  Am.  Law  Reg.  777. 

7  Birney  v.  N.  Y.  &  Wash.  Tel.  Co.,  18  Maryland,  341. 

8  U.  S.  Tel.  Co.  v.  Gildersleeve,  29  Maryland,  232;  Bryant  v.  Am.  Tel.  Co., 
1  Daly,  575. 


TELEGRAMS    AND    FIRE.  255 

must,  however,  be  proof  of  negligence  distinct 
from  the  infirmities  of  telegraphing.1  Some  of 
the  American  courts,  however,  have  held  that  the 
receiver  of  the  message  is  not  bound  by  such  a 
notice.2  The  company  may  restrict  their  liability 
on  other  points  as  well,  by  giving  notice  ;  but  the 
restriction  must  be  reasonable,  not  one,  for  in 
stance,  that  the  company  would  not  be  respon 
sible  for  mistakes  to  an  amount  greater  than  that 
paid  for  the  message.3  The  notice  will,  moreover, 
only  benefit  the  company  to  which  it  is  confined 
by  the  contract,  and  not  a  connecting  line.4 

"  But  suppose  one  is  not  aware  of  these  rules 
and  regulations  ?  " 

"  To  prevent  one  recovering  they  must  be 
brought  home  to  his  knowledge  5  but  he  will  be 
presumed  to  know  what  is  on  the  blank  used,  and 
to  make  the  conditions  thereon  his  own,  whether 
he  read  them  or  not."6 

"  Speaking  about  the  freaks  of  the  telegraph, 
did  you  see  that  one  about  the  young  parson  who 
was  about  to  start  for  his  new  parish,  but  was  un 
expectedly  delayed  by  the  inability  of  the  Presby 
tery  to  ordain  him  ?  To  explain  his  non-arrival  he 


1  Ellis  v.  Am.  Tel.  Co.,  13  Allen,  226  ;  and  Wann  v.  West.  U.  Tel.  Co.,  37 
Mo.  472. 

2  La  Grange  v.  S.  W.  Tel.  Co.,  25  La.  An.  385. 
s  True  7v  International  Tel.  Co.,  60  Maine,  9. 

4  Squire  v.  W.  U.  Tel.  Co.,  98  Mass.  232. 

5  Camp  v.  West.  Union  Tel.  Co.,  1  Met.  (Ky.)  164. 

6  West.  Union  Tel.  Co.  v.  Carew,  15   Mich.  525;    Wolf   v.  W.  Tel.  Co., 
G2  Pa.  St.  83;  but  see  Henderson  v.  Stevenson,  L.  R.,  2  S.  &  D.  470. 


256  TELEGRAMS    AND    FIRE. 

telegraphed  to  the  church  officials,  '  Presbytery 
lacked  a  quorum  to  ordain.'  In  the  course  of  its 
journey  this  got  strangely  metamorphosed,  and 
the  message-boy  handed  to  the  astonished  deacons 
a  telegram  saying,  "  Presbytery  tacked  a  worm 
on  to  Adam."  The  sober  elders  were  sorely  dis 
composed  and  mystified,  but  after  grave  consulta 
tion  the  happy  thought  struck  one  of  them  that 
this  was  the  new  minister's  facetious  way  of  an 
nouncing  his  marriage,  and  accordingly  they  pro 
vided  lodgings  for  two  instead  of  one." 

"That  is  rather  rich." 

Thus  chatting  with  my  friend  about  the  tele 
graph,  the  law  and  the  profits  thereof,  occasionally 
indulging  in  the  luxury  of  that  odious  weed  of 
the  great  Sir  Walter  Raleigh,  and  frequently 
practising  the  bibulistic  art,  the  time  passed 
rapidly  and  pleasantly  enough,  and  at  length  the 
shrill  ear-piercing  screech  of  a  locomotive  an 
nounced  the  arrival  of  the  train,  containing,  as 
Horace  neatly  puts  it,  animce  dimidium  mew*  or 
as  ordinary  folks  say,  "  my  better  half."  After 
the  usual  oscillatory  exercises,  I  inspected  the 
amount  of  her  handboxes,  bundles,  satchels  and 
checks,  and  concluded  that  it  would  be  useless  to 
expect  a  cabby  to  carry  home  such  a  vast  amount 
of  baggage,  and  at  well  nigh  the  noon  of  night  it 
would  be  equally  vain  to  endeavor  to  obtain  the 
services  of  a  carter  ;  so,  knowing  that  travellers 
have  a  reasonable  time  to  claim  and  remove  their 


TELEGRAMS    AND    FIRE.  257 

baggage,  I  determined  to  leave  it  at  the  station 
for  the  night. 

With  the  checks  clinking  together  in  my  pocket 
and  my  wife  by  my  side,  and  Eliza  Jane  in  front 
of  me,  I  drove  home  comfortably,  thinking  that 
in  the  morning  the  checks  would  bring  forth  the 
trunks ;  but  alas !  I  leant  upon  a  broken  reed, 
and  ere  the  morrow's  light  appeared  the  baggage 
and  my  right  to  recover  for  its  loss  had  vanished 
for  ever  and  ever,  like  a  morning  mist  before  the 
rising  sun. 

A  fire  broke  out  at  the  station  and  favored  by 
the  winds  of  heaven  it  grew  into  a  mighty  confla 
gration,  and  before  the  morning  watch  the  devour 
ing  element  had  consumed  the  station  and  all  that 
therein  was. 

After  a  visit  to  the  charred  and  smouldering 
ruins  of  the  once  handsome  depot  —  my  numer 
ous  inquiries  having  confirmed  my  worst  fears  as 
to  the  total  loss  of  my  wife's  apparel  —  I  returned 
to  my  office  to  consult  the  law  on  the  subject,  be 
fore  I  encountered  her  ladyship  with  the  direful 
news  of  the  antics  of  the  Fire  Fiend.  There  I 
quickly  found  that  after  a  reasonable  time  and  op 
portunity  to  take  away  his  baggage  has  been  given 
to  a  traveller,  the  company's  responsibility  as 
carriers  ends :  they  are  no  longer  responsible  for 
its  absolute  security,  but  degenerate  into  mere 
warehousemen  bound  to  exercise  only  that  care 
which  a  prudent  man  ordinarily  does  in  keeping 

W.  &  R.  OF  T.— 17 


258  TELEGRAMS    AND    FIRE. 

his  own  goods  of  a  similar  kind  and  value  ; 1  and 
that  care  is  exercised  by  the  company  placing  the 
goods  in  a  secure  warehouse ; 2  or,  as  a  Canadian 
Chief  Justice  of  high  repute  and  great  experience 
says,  "the  terminus  of  the  transport  being  reached, 
the  duty  of  the  common  carrier  is  fulfilled  by 
placing  the  goods  in  a  safe  place,  alike  safe  from 
the  weather  and  from  danger  of  loss  or  theft."3 
It  was  perfectly  clear  that  the  company  was  not 
responsible  to  me  for  the  loss  of  my  baggage,4 
through  the  foul  pranks  of  the  Fire  Fiend.  And 
it  would  have  been  just  the  same  if  it  had  been 
stolen  from  the  warehouse ;  5  or  if  on  the  arrival  of 
the  train  I  had  taken  possession  of  the  trunks,  and 
afterwards  for  my  own  convenience  handed  them 
back  to  the  baggage-master  at  the  station  to  be 
kept  until  sent  for,  and  they  had  come  to  grief  or 
been  pilfered ; 6  unless,  indeed,  there  was  some 
gross  negligence  on  the  part  of  the  company.  And 
I  found  by  my  books  that  it  is  the  duty  of  the 
company  to  have  the  baggage  ready  for  delivery 
upon  the  platform,  at  the  usual  place,  until  the 
owner  may  with  due  diligence  call  for,  and  receive 

*  Shepherd  v.  Bristol  &  Ex.  Kw.,  L.  R.,  3  Ex.  189  ;  Mote  v.  Chicago  &  N. 
W.  Rw.,  1  Am.  Rep.  212 ;  27  Iowa,  22  ;  Burnell  v.  N.  Y.  C.,  46  N.  Y.  187 ; 
Rock  Island  &  Pacific  Rw.  v.  Fairclough,  52  111.  106. 

2  Bartholomew  v.  St.  Louis,  Jacksonville,  etc.,  Rw.,  53  111.  227. 

3  Inman  v.  Buffalo  &  L.  H.  Rw.,  7  U.  C.  C.  P.  325  ;  O'Neill  v.  Great  West 
ern  Rw.,  Ibid.  203;  Bowie  v.  Buffalo,  Brantford,  &  G.  Rw.,  Ibid.  191. 

<  Roth  v.  Buffalo  &  State  Line  Rw.,  34  N.  Y.  548. 

o  Penton  v.  Grand  Trunk  Rw.,  28  U.  C.  Q.  B.  367  ;  Campbell  v.  The  same, 
Hilary  Term,  1873  (Ont.). 
«  Minor  v.  Chicago  &  North  Western  Rw.,  19  Wis.  40. 


TELEGRAMS    AND    FIRE.  259 

it ;  and  that  it  is  the  owner's  duty  to  call  for  and 
remove  it  within  a  reasonable  time ;  and  that 
"  reasonable  time  "  is  directly  upon  the  arrival  of 
the  train,  making  a  reasonable  allowance  for  delay 
caused  by  the  crowded  state  of  the  depot  at  the 
time ;  but  that  the  lateness  of  the  hour  makes  no 
difference  if  the  baggage  be  put  upon  the  plat 
form.1  Nor  does  the  fact  of  it  being  Sunday  make 
any  difference.2  But  if  the  traveller  does  not 
choose  to  call  and  take  away  his  impedimenta  (as 
Julius  Caesar  calls  it),  the  company  do  all  they 
need  by  putting  it  into  their  baggage  room  arid 
keeping  it  for  him,  with  the  liability  of  ordinary 
warehousemen. 

Thus  conscious  that  I  should  wring  nothing 
from  the  iron  grasp  of  the  railway  company,  and 
that  out  of  my  own  professional  earnings  I  should 
have  to  replenish  my  wife's  wardrobe,  I  went 
home  sad,  down-cast  and  dejected,  to  break  the 
direful  news  to  her. 

Scarcely  had  I  entered  my  house,  which  had 
been  so  peaceful  and  calm  during  the  past  few 
weeks,  when  my  alter  ego  flew  at  me  with  a  perfect 
storm  of  words  and  questionings  as  to  why  her 
trunks  had  not  yet  come  up,  and  assertions  that 
she  had  literally  nothing  to  wear.  (Though  to  the 
eyes  of  an  ordinary  mortal  she  appeared  far  from, 
being  in  puris  naturalibus.) 

1  Ouimit  v.  Henshaw,  36  Vt.  605. 

2  Jones  v.  Norwich  &  N.  Y.  T.  Co.,  60  Barb.  193. 


260  TELEGRAMS    AND    FIRE. 

When  I  told  of  the  fate  that  had  befallen  her 
paraphernalia  the  storm  increased  into  a  hurri 
cane,  and  when  it  was  announced  that  the  com 
pany  were  not  liable,  a  perfect  tornado  —  a  cy 
clone  —  a  typhoon  —  a  simoon  —  of  words,  whirled 
with  terrific  fury  around  my  head,  then  a  perfect 
waterspout  shot  forth  ;  and  I,  remembering  sud 
denly  an  appointment  down  town,  vanished  from 
the  scenes,  resolved  that  henceforth  both  myself 
and  my  amiable  —  but  hysterical  —  spouse  would 
eschew  the  iron  horse  and  his  train  forever,  and 
living  peaceable  at  home  avoid  the  Wrongs  and 
Rights  of  Travellers  by  Rail,  by  Stage,  by  Pri 
vate  Conveyance. 


INDEX. 


A. 

PAGE 

Accident,  different  kinds  of 7 

horses  frightened  by 5 

not  sufficient  proof  of  negligence  .  .  106,177 
carriers  not  liable  for  unforeseen  .  .  .54,176 
number  of 185,188 

Accident  Insurance,  what  is  an  accident  ?     .  36 

Lord  Cockburn's  definition 36 

Michigan  definition 36 

Maryland  and  New  York  .        .        .         .         36,  37 

injury,  no  accident  to  car 37 

compensation  for  injuries 37,  38 

none  for  loss  of  time 38 

injuries  from  external  causes 39 

while  bathing 40 

caused  by  negligence  ......       41 

wilful  exposure 42 

Acts  of  Parliament,  not  those  of  the  Apostles  .         .119 

Agents.    (See  SERVANTS.) 

carrier  liable  for  torts  of        ....          248-251 

for  wilful  acts  within  range  of  employment         .         .     248 
injured  one  must  show  authority  of  .         .         248 

persons  acting,  presumed  to  be  ....     250 

assault  by  .         .  .         .         .         .          249 

exemplary  damages    .        .        .        .         .         .         .     250 

carrier  liable  if  agents  disobey        ....         251 

but  not  when  they  exceed  authority    .        .         .         .251 

Alighting  at  Railway  Stations,  cars  should  be  stopped  at 

safe  place 147,  148 


262  INDEX. 

Alighting  at  Railway  Stations  —  Continued. 

is  calling  out  name  an  invitation  to  alight          .      152-154 

depends  on  circumstances 153 

stopping  of  train  an  invitation 153 

calling  out  name  a  mere  intimation        .      .  .         .         154 

jumping  off  the  steps 150,151 

company  should  assist  at  difficult  places  .  .  154 
passenger  should  ask  train  to  be  put  in  a  proper  place  154 
alighting  when  warned  not  to  .  .  .  .  155 

sufficient  time  must  be  given 155 

sick  or  drunken  passengers 156 

American  Cases,  authority  of 109 

Anecdote,  Lord  Kenyon  and  Erskine       .         .        .         .          19 

The  Devil's  Invincibles 59 

a  sleeping-car 205 

Arrests,  by  carrier's  servants 166,251 

Authority,  Acts  in  Excess   of,  arresting  to   prevent  a 

crime 166 

carriers  not  liable  for  acts  of  agents  ....    251 

B. 

Baby,  value  of  leg  of 222 

Baggage  of  Passengers.     (See  CHECKING  BAGGAGE.) 

falling  on  one's  toes    .        .        .        .        .         .         .123 

checking 95,  96 

what  is  personal  baggage  ?  .  .  .  158,162,240 
owner  may  recover  for  loss,  unless  negligent  .  82,  159 
what  is  not  personal  baggage  .  .  .  160,  165 
goods  cannot  be  taken  instead  of  .  .  .  .161 
earner  not  liable  beyond  actual  value  .  .  .  164 

notice  limiting  liability 165,  239 

when  liability  begins       .         .        .  .         .        236 

when  it  ceases     .         ...        .  .         .     258,  259 

can  only  recover  for  one's  own        .        .        .        .        237 

left  in  car  by  servant  .        .         .         .        .  237 

need  not  be  marked  with  name       ....        237 

carrier  liable  even  if  with  owner  ...  83,  238 
loss  on  other  lines  .  ....  238, 239 


INDEX. 


263 


Baggage  of  Passengers.  —  Continued. 

money  with  baggage  .....      108-110 

is  a  present  baggage  f .    .        ,        .        .        •         •         241 
what  is  sufficient  re-delivery       .         .         .      242,  258,  259 
hotel  omnibuses,  lost  in  ......         242 

liability  ceases  when  ready  for  re-delivery          .         .257 

loss  of  by  fire  at  station 257 

stolen  from  warehouse 258 

owner  should  remove  it  in  reasonable  time     .         .         259 

not  properly  packed 48 

carrier  has  lien  on,  for  fare 76 

Bed-clothing,  is  it  baggage  ? 163 

Bridge,  when  municipality  must  repair   ....          85 
at  railway  station,  out  of  repair          ....       93 

C. 

Calling  out  name  of  station,  duty  of  conductor       .         153,  155 
(See  ALIGHTING  AT  STATIONS.) 

Care.     (See  DUE  CARE,  NEGLIGENCE,  PASSENGER  CARRIERS.) 

Carelessness.     (See  NEGLIGENCE.) 

Of  Railway  Company,  misplacement  of  switch       .         .     104 

injury  not  positive  proof. of 106 

Of  Injured  Party,  jumping  off  platform          .         .         .105 

running  against  fixtures 105 

losing  money      .         ...         •         •         •         •         .110 

jumping  off  train 150-152 

jumping  off  train  in  motion         .         .         .      122,  155,  235 

Carriers'  Act Ill 

Carrying  past  Stations,  damages  for  .         .         .     120,121 

Change,  right  to  expect  or  demand           .         .         .         .         125 
helping  one's  self  to 166 

Checking  Baggage,  when  must  be  done          .         .         .95,  96 

penalty  for  refusing .95 

not  necessary 158 

is  merely  additional  precaution  ....  159 

check  is  evidence  of  receipt  of  baggage  .        •        167 

Children,  running  over        .       ".        .        .        •         •        26,27 
damages  for  injuring       .        .         .        •  '        •         196-200 


264 


INDEX. 


Children.—  Continued. 

loss  of  leg  and  hand 196 

travelling  without  ticket         .         .        .         .         .         197 
misconduct  of  guardian      .        .         .         .  198-200 

wandering  about     .         .  .         .         .          199^  200 

cave  required  of  parents 200 

damages  for  death  of 218,219 

value  of  limbs  of 196,222 

Cloak  Room,  should  be  kept  open 164 

Colored  Persons,  separate  cars  for 128 

Compensation.      (See    ACCIDENT    INSURANCE,    DEATH, 
DAMAGES.) 

Conductor,  wilful  delay  of       ....    *v.         .         101 

his  hat  and  badge        .         .         .         .         .         .         .111 

his  duty  when  there  is  fighting  in  cars   .         .          126,  127 
whom  he  may  refuse  to  receive  .         .  .126 

when  he  may  eject  passenger          .         .         .         .         131 

is  the  agent  of  company      .         .         .         .        .         .133 

carelessness  of 170,  171 

should  call  out  names  of  stations        .         .         .         .155 
kissing  a  traveller 249 

Crossings.     (Sec  RAILWAY  CROSSINGS.) 

C'rtim  Cater         ...  147 


D. 

Damages.     (See  PASSENGER  CARRIERS,  NEGLIGENCE.) 

from  bad  roads        .         .' 30,  33 

trains  behind  hand       .         .         .  .         .         98,  99 

unpunctuality  of  trains 99,100 

passenger  carried  too  far 120,  121 

passenger  bitten  by  dog 1 24 

passenger  injured  by  others        .         .         .         .        .127 
passenger  unlawfully  ejected  .     •  .        .          132,  135 

too  remote 133 

for  loss  of  baggage.     (See  BAGGAGE.) 
injury  caused  bv  vis  major      .         .         .         .         .         178 
nnforseen  accidents  .  .         .  176,  182 

discoverable  defects        .        .         .         .        .          177,  179 


INDEX.  265 

Damages.  —  Continued. 

injuries  to  children.     (See  CHILDREN.) 

to  passengers  and  employees      ....      209,  226 

injuries  producing  death.     (See  DEATH.) 

amounts  recovered  for  injuries  and  death        .          218-223 

excessive,  ground  for  new  trial  ....    222 

prospective      .         .       ,  .         .         •         •         •         •         223 

for  what  injuries  given 223,  224 

Deadhead.     (See  FREE  PASSENGERS.) 

Death  Produced  by  Injuries,  remedy  for,  purely  statutory    209 

Lord  Campbell's  Act 209 

who  may  sue  for  damages 210 

damages  for  pecuniary  loss 210 

for  mental  anguish      .         .         .         .  '       .         .      210-212 

loss  of  wife 212 

loss  of  mother 212 

death  must  not  be  instantaneous  ....  214 
different  rules  as  to  amount  of  damages  .  .  214-217 
damages  not  to  be  full  compensation  .  .  .  217 
deceased  diseased,  or  of  bad  character  .  .  .217 

or  heavily  insured 217,218 

amounts  given  218-220 

settlement  before  death 218 

Delay,  carrier  liable  in  damages  for      .         .         .         .         98,  99 
from  bad  roads 25 

Devil's  Invincibles,  the 59 

Dog,  company  responsible  for  acts  of,  at  station       .         .         124 
lost  dog 235 

Driving.     (See  STAGE  COACHES,  ROAD.) 
negligence  in,  chapters  I.  and  II. 

owner,  if  driving,  responsible  .         .         .         .  13 

carriage  jointly  hired,  joint  liability  .         .         .13 

too  fast  22 

upsetting 23,  29,  56 

turning  out,  when 23 

running  over  children          .         .         .         .         .         26,  27 

running  against  drunken  men         ....          28 

driver  must  be  capable       .         .        .        .         .         .29 

horses  running  away       .         .         .        ...       31-34,  55 


266  INDEX. 

Driving.  —  Continued. 

horses  shying 32 

horses  and  carriage  must  be  sound  ...  33 
need  not  examine  carriage  every  day  .  .  65,  66 
in  dangerous  places  ......  84 

Drunken  Passenger,  when  earner  may  refuse  to  take     126,  127 
when  conductor  must  assist 156 

Due  Care,  what  it  is •         182 

carrier  must  exercise 176 

not  enough  to  give  up  passenger's  corpse  .  .  176 
carrier  must  use  best  precautions  in  practical  use  .  177 

E. 

Eviction  from  Cars,  for  not  showing  ticket  .  .  .  125 
Excessive  Damages,  a  ground  for  new  trial  .  .  .  222 
Excursion  Trains,  company  liable  for  accidents  on  .  202 

F. 

Fare,     (See  TICKETS,  PASSENGERS.) 

passenger  refusing  to  pay  on  cars  .  .  .  .125 
prepayment  on  stages  ......  45,  47 

if  paid,  seat  reserved 46 

if  not  prepaid,  payable  at  end  of  journey  .  .  47 
carrier  has  lien  on  baggage  for  ....  76 

but  not  on  passenger 76,  139 

tendering  at  last  moment 

must  be  paid  even  if  no  seat  provided     .         .         .         130 
Ferryman,  Fare  in  advance  to    .        *        •         •         '         .68 
must  provide  safe  boats,  etc.  .        .         •         .     68,  €9 

liable  for  safety  of  horses,  though  driven  by  owner  69,  70 
must  work  at  all  times  .  .  •  •  •  .70 
horses  jumping  overboard  ..... 

Fighting  in  Car •         •     126- ^ 

Fingers,  Squeezing,  in  Car  .  .  .  .  •  170,171 
Fire,  baggage  burnt  at  station  .  .  .  .  •  257,  258 
Fishing-Rod,  is  personal  baggage  ....  243 

Fog,  accidents  arising  from          ......      54 


INDEX.  267 

Free-pass  Holders,  entitled  to  be  carried  safely      .         201,  202 
unless  special  agreement  exempting  carrier       .     202,  204 

newsboy 204 

loss  of  baggage  of 236 

G. 

Getting  on  and  off,  stage  coach 79 

train  in  motion 155,  235 

Good  for  this  day  only,  ticket  marked  .  .  .  .114 

or  "  for  this  trip  " 114 

"  for  twenty  days  from  date  " 115 

Gun  and  Pistols,  considered  personal  luggage         .         243,  244 

H. 

Hand,  value  of  a 220 

Horses  Running  Away 31,  34,  55 

Husband  and  Wife,  entitled  to  carry  double  baggage        .     107 

henpecked  husband's  will 213 

injuries  to  wife 224 

I. 

Ice  and  Snow,  on  roads  and  sidewalks         .        .        .        .    8,  9 
falling  off  houses    .         .         .         .         .         •         •  10 

on  railway  platforms 94 

Indian  Railways 175 

Indecision •         •         .        75,  163 

Infirm  and  Aged  People,  accidents  to     .         .         .        .11,12 
Insurance  against  Accidents      .....         36-42 
Invitation  to  alight.     (See  ALIGHTING  AT  STATIONS.) 
Iron  Horse,  injuries  from  charge  of     .        ;        .        .         .104 

J. 

Jewelry,  is  personal  baggage  ....        240,  245 

Jumping  off  stage  coach       .......      50 

train  in  motion 122,  155,  235 

through  fear  of  accidents 122,156 


268  INDEX. 

Junctions,  liability  of  various  companies  at  .        .         123 

Jury,  decisions  of         .        .         .        »         .        .        .         .     195 

K. 

Kiss,  company  pays  for  conductor's 249 

L. 

Ladies'  Car,  who  may  use 129 

when  train  full  men  may  enter       .         .         .         .         130 

Lawyers 76,  77 

Leg,  value  of  a .        221 

value  of  a  baby's         .        .  ' 222 

Limitation  of  Liability,  of  carriers  for  baggage     .          165,  239 
Locomotives,  must  ring  or  whistle  at  crossings  .         .         64,  88 

Loss  of  Time  224 

Lost  Baggage.     (See  BAGGAGE.) 
Lost  Ticket.     (See  TICKET.) 

loss  of  ticket  falls  on  passenger       .        .         .         117,118 
even  though  previous  purchase  proved        .         .         .119 

M. 

Man  run  over 232 

Master.      (See    KAILWAY    COMPANY,   STAGES,   STEAM 
BOAT.) 

when  liable  for  acts  of  servants      .         .        .         .        2,  3 

Matrimonial  Prospects,  damages  for  injuries  to         .      224,  225 

Merchandise,  not  personal  baggage          ....        245 

Money  of  Passengers,  when  carrier  liable  for     .        82,  108-110 

negligence  of  passengers        .        .        .         .        .83,110 

not  beyond  a  reasonable  sum 108 

Musical  Instruments,  are  they  personal  baggage  ?         .        244 

N. 

Negligence  of  Party.     (See  PASSENGER  CARRIERS.) 

in  charge  of  children 27 


INDEX. 


269 


Negligence  of  Party.  —  Continued. 

in  driving        .         .      • 3°-34 

plaintiff  in  fault 28 

party  is  affected  by  driver's  negligence  ...          65 

at  stations •         •         •         -105 

arms  and  legs  projecting       . 

injury  received  in  alighting         ....     151,152 

in  entering  car 1«* 

on  platform  car,  or  in  baggage,  wood,  or   freight 

car 19°-194 

no  room  inside l91 

party  in  express  car •         192 

when  killed .210 

Negligence  of  Bailway  Companies,  injury  not  sufficient 

proof  of 10G 

starting  train  too  soon 1 22 

baggage  falling  on  passenger 123 

stopping  at  unsafe  places 

defect  in  car  window 169 

squeezing  fingers 170>  171 

unforeseen  accident 17G 

injury  prima  facie  proof  of  negligence     .         .         .         177 

latent  defects 181>  182 

loss  of  a  dog 235 

not  whistling  at  crossings 64. 

(See  RAILWAY  COMPANY,  STATIONS.) 

Negligence  of  Servants,  in  driving     .         .         •         •         2,  3,  4 
towards  fellow-servants       ...         .       -  •         •         4 

baggage  falling  off  track 127 

Negligence  of  Stage  Coach  Owner,  liable  for  negligence 

of  driver 50»  5l 

drivers  must  watch  where  they  go      .         .         •         .51 

plaintiff's  negligence        .         .         •        •        • 

owner  answerable  for  smallest  negligence  ...       52 

or  defects  in  the  coach 

unless  defects  are  hidden 52 

driver  must  be  discreet,  and  all  things  sound  53 

owners  not  actual  insurers 54 

real  accidents •        .     54,  55 


270 


INDEX. 


Negligence  of  Stage-coach  Owner.  —  Continued. 

horses  running  away 55 

passenger  suffers  from  driver's  neglect  .        .        .56,  65 

party  falling  in  ascending 79 

damage  from  rain 81 

acts  of  God 81 

driver  charging  for  parcels 83 

dangerous  places 84 

P. 

Passenger.     (See  FARE,  TICKET.) 
By  Coach. 

negligence  of  driver  affects  passenger    *     .         .         56,  65 
driver  must  stop  at  usual  places     ....  78 

By  Railway. 

on  wrong  train         .         .        .  .        .        .         122 

refusing  to  pay,  may  be  put  off  .         .        .     125,  131 

tendering  fare  at  last  moment        .        .         .         .         125 

drunk  and  disorderly          .         ....     126,  127 

may  be  excluded  for  bad  conduct   .         .         .         .         127 

should  be  treated  with  respect, 129 

without  seat,  must  pay 130 

but  may  sue  the  company  ....      130,  131 

when  he  may  be  put  off .         .        .        .        .         .         131 

ticket  mislaid     ...        .         .         .         .    •     .     132 

damages  for  ejectment    .....         132-134 

killed  in  being  put  off         .        .         .        .         .         .135 

better  quietly  submit  to  conductor  .         .         135,  136 

getting  off  at  intermediate  stations    .         .         .     137,  140 
not  delivering  up  or  showing  ticket        .         .         .         137 

rights  at  way  stations 140,  141 

must  conform  to  regulations  .         .        .        .        .         190 

in  improper  places 190-193 

walking  through  train     .         .         .         .         .         .         194 

Passenger  Carriers,  not  insurers         .         .         .        176,  181,  54 
extent  of  liability  ....       52-54,  181-184 

Pedestrians,  may  walk  on  road 3,  15 

must  look  out  at  crossings      ...  15 


1ND-EX.  271 


R. 

Railway  Accidents,  very  few  .         .        .        ... 

Bail  way  Companies.     (See  NEGLIGENCE.) 

sign-post  in  the  way 

letting  off  steam  at  crossing 67 

must  take  more  care  of  passengers  than  strangers  . 

need  only  stop  at  usual  places 121 

must  maintain  order 

must  forward  passengers  if  line  blocked  .  .  .173 
are  not  insurers  of  passengers  .  .  -  176,181 
extent  of  liability  .  .  .  •  .176,180 

rule  in  England  as  to  liability         .         .         .        •        178 

in  New  York      .        . i77 

do  not  warrant  that  car  is  perfect  . 

presumption  when  passenger  injured  177,  180 
responsible  for  utmost  care     .         .         .          176,178,183 
obligation  extends  to  all  apparatus  of  transporta 
tion      '•  "7,178 

perfect  apparatus  not  expected  .         .         •      177,  182 

degree  of  care  required 

must  adopt  every  precaution  in  known  use  .  .177 
contributory  negligence  .  .  ...  .  190 

seats  must  be  provided 190,  191 

too  many  in  train   .         .         .         •         •         '         *         *^2 
injuries  to  children.     (See  CHILDREN.) 
responsible  for  all  lawfully  aboard 

may  limit  liability 202-204 

limitation  does  not  extend  to  independent  wrongs          203 
injuries  producing  death.     (See  DEATH.) 
liability  for  acts  of  agents  ana  servants.     (See 
AGENTS,  SERVANTS.) 

bad  construction  of  line 2°8 

rule  as  to  passengers  and  employees 

wrongs  done  by  strangers        .         .         .         .         232,  233 

when  liability  for  baggage  ceases       .         .         .      257,  258 

afterwards  liable  as  warehousemen         .         .        .        2.57 

Railway  Act  of  1868  .         .         .         .         ...         .119 


272  INDEX. 

Railway  Crossings,  people  must  look  out  at      .         .         63,  64 

letting  off  steam  at 67,68 

watchmen  not  always  needed  at         ....       88 
when  crossing  dangerous        . '       .        .        .         .  89 

bell  or  whistle  to  be  sounded  at          ...  64,  88,  89 
diligence  required  in  crossing,  though  bell  is  not 

rung        .      ' 64,  90,  91 

negligence  of  driver  of  carriage  affects  all  in  it,       .  65 

leaving  railway  gates  open 90 

rails  must  be  level  with  road  .  ,        .        .          92 

Railway  Police    .         .         .         .         .         .         .         .         .167 

Railway  Stations.     (See  ALIGHTING  AT  STATIONS.) 

company  liable  for  dangerous  access  to  .         ..  93,  145 

dangers  at 94,  104 

must  be  fit  for  occupation        .        .         .  .         103 

must  be  careful  at  .         .         .  .      106,  141 

ferocious  dogs  at     .         .        .         .  .        .         1-4 

platforms 106,  145,  154 

hole  in  platform       .         .         .        .         .        .        .         143 

should  be  properly  fenced          .         .         .         .        .144 

should  be  lighted     .         .         . '  .        .        .         145 

Road,  should  be  kept  in  repair 8,  57 

slippery  .         .         ...         .         ... 

repair  depends  on  locality  .         .        -.         .        •         .11 
railing  giving  way  on      ...... 

accidents  on  Sunday  on 18,  19 

snow  and  ice  on 23,  24 

when  impassable  may  go  in  fields       ...         24,  26 
deviating  from 29 

Road,  Laws  of  the.     (See  DRIVING.) 

keeping  on  right  side       .         .         •         •         •         • 
greater  care  needed  on  wrong  side      .         .         .   14,  70,  73 
rules  in  England,  Canada  and  United  States 
may  be  departed  from         .         .         .  •         .72 

passing  laden  wagons      .         .        .  .         .    72,  /4 

not  applicable  to  buildings          .         .         •         •         •       '4 

Runaway  Horses,  injuries  done  by         .         .         •         6,31,55 

Rural  Sights  and  Sounds   .         .         ...         .         •         60'  64 


INDEX.  273 


s. 

Samples  and  Patterns,  not  personal  luggage    .  .     1 65 

Servants.     (See  MASTERS,  RAILWAY,  STACK.) 

when  master  liable  for  acts  of 3 

master  in  general  not  liable  for  injuries  to  4 

negligence  of  fellow-servants       ....      226-228 
improper  servants  or  machinery      ....         226 

who  is  a  fellow-servant  ? 228 

servants  of  different  grades 228 

Sidewalks,  should  be  safe  and  in  repair 

slippery  .........  9 

Sleeping-car  Scene 205 

Smoking-car 130 

Snakes  and  Eels 6 

Snow  Blockade,  duty  of  company  .         .         .         .         .         173 
on  Pacific  Railway      .         .         .         .         •         •         .175 
StageCoaches.     (See  NEGLIGENCE.) 

literature  of 44 

payment  of  fare.     (See  FARE.)      .... 

owner    warrants    soundness    of    stage    and    equip 
ments      .         .         .         .         .         .         .         .  45,  46,  53 

reserving  inside        .......  46 

racing 49 

negligence  of  driver         .         .  .         .         .    50,  51 

passenger  entitled  to  seat  as  agreed   ...         46,  79 
jolted  off          .         .         .......  57 

time  for  refreshments         .....  78 

when  fare  paid,  seat  may  be  taken  at  any  time     '.  79 

owners  not  actual  insurers 54 

Stations.     (See  RAILWAY  STATIONS.) 

Stairway,  slippery *      .  24 

Stopping  at  way  stations   .        -. 115 

Strangers,  acts  of    .         .         ....         .         .         102 

Sunday,  deeds  of  necessity  and  charity  allowed  on       .          16,17 
visiting  sweetheart  .         .         .         .  •  •        ll> 

going  to  church  on 17 

accidents  on • 

18 


274 


INDEX. 


T. 

Telegrams   and   Telegraph    Companies,   specimen   tele 
gas      252,255 

company  responsible  for  negligence        .         .         .         252 
notice  as  to  repeating  telegrams          .         .         .     252   254 
effect  of  notice        ....  954  955 

does  not  free  from  wilful  mistakes     ....     254 

or  delay  in  delivery         ......         254 

sender  must  be  aware  of  the  rule        .  254 

company  liable  for  their  own  default      .         .         .        253 
who  may  sue       .........      253,  254 

Ticket,  not  proof  of  contract  to  cany      .  .         101, 121 

annual  or  season 1 1 1 

,        passenger  need  not  buy  before  starting  .  112,125,138 

must  be  produced  when  demanded    .         .        r  113 

exchanging  ticket  for  check    .  ]13 

"  good  for  this  day  only "  .         .         .        ,        ,  114 

.    "  good  for  this  trip  only ir .114 

unmutilated,  but  old  .         , -114 

coupon  ticket U5 

cannot  be  used,  twice 115 

if  journey  interrupted,  ticket  useless-  .  •  .  no 
if  lost,  fare  must  be  paid  again  .  .  117, 118, 139 
even  if  previous  payment  proved  .  .  .  118,119 
producing  ticket,  OT  eviction  .  .  '  .  125 

ticket  mislaid 132 

unlawfully  taken  by  conductor  .  133 

discount  on 138 

children  without          .         .         .         .         .         .         .     197 

through  ticket 230  231 

Time  Tables,  representations  in          ....  98 

must  be  produced 101 

proof  of      . .     101 

change  of 99 

Title  Deeds,  not  personal  baggage 160 

Tobacco-perfumed  Stations    .         .         .         .  .         103 

Track,  must  be  kept  in  order       .         .....     229 


INDEX.  275 

Trains,  must  be  run  At  regular  hours       .  96 

time  of  starting  must  be  advertised     .  96 

un punctuality  of     . 98,  99 

missing  connection 99,  100 

taking  special  tram 100 

separate  car  for  colored  people 129 

ladies' car 129 

excursion  trains 128 

smoking  car 130 

starting  too  soon  and  without  notice           .         .      140, 141 
running  over  a  man 2.32 

Travelling   in    Carriage,    within    meaning    of    accident 

ticket  40,41 

U. 
Upsetting.     (See  DRIVING-.) 

y. 

Velocipedes  are  nuisances .12 

W. 

Walking  on  Track         ,  ....  92 

Windows  of  Car,  falling  down  .         .         .  .         .169 

need  not  be  protected      ....  .170 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 


AN  INITIAL  FINE  OF  25  CENTS 

WILL  BE  ASSESSED  FOR  FAILURE  TO  RETURN 
THIS  BOOK  ON  THE  DATE 'CUE.  THE  PENALTY 
WILL  INCREASE  TO  SO  CENTS  ON  THE  FOURTH 
DAY  AND  TO  $1.OO  ON  THE  SEVENTH  DAY 
OVERDUE. 


JAN  2! 


APR 


131  :    ! 


, 


160ct'56PW 
REC'D  LD 


i3Mar'593B 

.- 


•     » 


'• 


861370 


THE  UNIVERSITY  OF  CALIFORNIA  LIBRARY 


